Toyota of Berkeley

National Labor Relations Board - Board Decisions

Mar 30, 1992

306 N.L.R.B. 893 (N.L.R.B. 1992)

893
306 NLRB No. 182
TOYOTA OF BERKELEY
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 Neither of the above clarifications of the judge’s decision
changes the result we reach in this case.
Southwick Group d/b/a Toyota of Berkeley and
Automobile Salesmens Union Local 1095,
United Food and Commercial Workers Union,
AFL–CIO and United Food and Commercial
Workers Union, Local 1179, Automobile Sales
Division. Cases 32–CA–6505, 32–CA–7233, 32–
CA–7846, 32–CA–9362, and 32–CA–10320
March 30, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On August 22, 1990, Administrative Law Judge
Jerrold H. Shapiro issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The General Counsel also filed exceptions and a sup-
porting brief, and the Respondent filed an answering
brief to the General Counsel’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions as modified, and to adopt the recommended
Order.
1. The judge found, and we agree, that Local 1179
properly succeeded to Local 1095’s October 17, 1988
certification by the Board, as the bargaining represent-
ative of the Respondent’s motor vehicle salespersons,
when 1095 merged with 1179 and became a part of
that local, as a separate and semiautonomous division,
the Automobile Sales Division, i.e., a continuity of
representation was maintained after the merger. See
generally, e.g., Seattle-First National Bank, 290 NLRB
571 (1988). We find it necessary, however, to clarify
certain of the statements he made in reaching that find-
ing.
In his discussion entitled, ‘‘The Issue of Con-
tinuity,’’ the judge states that one of the conditions of
the merger of Local 1095 and Local 1179 was that the
geographic jurisdiction and trade jurisdiction of the
newly created Automobile Sales Division in Local
1179 be identical to predecessor Local 1095’s geo-
graphic and trade jurisdiction. In the next paragraph,
however, he states that the Automobile Sales Division
of Local 1179 has a much larger geographic and a
much narrower trade jurisdiction than Local 1095’s ge-
ographic and trade jurisdiction. It is obvious from sub-
sequent discussion in the judge’s decision that the ref-
erence to Local 1095 in the second statement was mis-
taken. The judge meant to compare the jurisdiction of
the Automobile Sales Division in Local 1179 to the ju-
risdiction of the remainder of Local 1179. In this re-
gard, the geographic jurisdiction of the Automobile
Sales Division was much broader, but its craft jurisdic-
tion was much narrower, than the remainder of Local
1179. The judge’s first statement was correct.
Later in the same discussion, the judge states that in
determining that there was a substantial degree of con-
tinuity between the premerger Local 1095 and the
postmerger Local 1179, ‘‘it is also significant that after
the merger, Local 1095 did not surrender control over
its representation and collective-bargaining functions.’’
The Respondent has excepted to this conclusion. We
find that in the discussion that followed this statement,
the judge explained its meaning, i.e., that all the im-
portant representation and collective-bargaining func-
tions performed for its members by Local 1095 when
it existed as a separate local continued to be performed
for those same individuals by the newly created Auto-
mobile Sales Division of Local 1179. In other words,
virtually all the benefits and privileges which Local
1095 members had enjoyed were continued after the
merger within that separate and semiautonomous divi-
sion.2
2. Until December 13, 1983, the Respondent recog-
nized Local 1095, the Union, as the exclusive bar-
gaining representative of its full-time and regular part-
time salespersons. On that date the Respondent law-
fully withdrew recognition from the Union, after the
filing, on the same day, of a decertification petition
supported by a majority of the unit employees. Six
days later, on December 19, the Respondent filed an
RM petition in the same unit. Between the representa-
tion election that followed on February 22, 1984, and
the Board’s certification of the Union on October 17,
1988, the Respondent made certain unilateral changes
in its salespersons’ terms and conditions of employ-
ment. The judge found that the Respondent acted at its
peril in making these changes and thus violated Sec-
tion 8(a)(5) and (1) of the Act. He concluded that, in
the absence of compelling economic considerations,
unilateral changes made by an employer pending deter-
mination of objections and challenges have the effect
of bypassing and undermining the union’s status as the
employees’
894 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 In a supplemental decision in Cases 32–RD–552 and 32–RM–
362, the Regional Director deferred his decision on three determina-
tive challenged ballots pending the resolution of the three voters’
employee status under the parties’ contractual grievance-arbitration
procedures, and he deferred action on the Union’s objections until
such time as the election’s outcome was known.
4 209 NLRB 701 (1974), enf. denied on other grounds 512 F.2d
684 (8th Cir. 1975).
5 299 NLRB 914 (1990).
6 Member Raudabaugh does not pass on whether he agrees with
Krueger. Member Oviatt continues to adhere to the position he took
in his dissent in Krueger.
7 The Respondent also relies on Ellex Transportation, 217 NLRB
750 (1975), in support of its argument that it was privileged to make
unilateral changes during the period between the election and the
certification of the Union. We note that that case was implicitly
overruled for the proposition relied on by the Respondent in Dresser
Industries, 264 NLRB 1088 (1982), and Sanderson Farms, 271
NLRB 1477 (1984). See Alexander Linn Hospital Assn., 288 NLRB
103, 107 fn. 16 (1988); and Houston Coca-Cola Bottling Co., 265
NLRB 766 fn. 2 (1982).
ees’ statutory representative in the event it is ultimately cer-
tified.3 In support of this conclusion, the judge cited Mike
O’Connor Chevrolet.4
It is clear that any unilateral changes the Respondent
chose to make from the time it lawfully withdrew rec-
ognition until the election would not have violated
Section 8(a)(5) of the Act because it was under no
duty to bargain with the Union about such changes
during that limited period. However, the unilateral
changes made after the election were unlawful. In this
regard, we note that the Respondent lawfully withdrew
recognition from the Union on December 13, 1983,
and thus the Union participated as a nonincumbent in
the election of February 22, 1984. The election ulti-
mately resulted in the certification of the Union in
1988. The unilateral changes were made between the
time of the election and the time of the certification.
In Mike O’Connor Chevrolet, the Board held that, in
such circumstance, the unilateral changes are unlawful
under Section 8(a)(5). That is, the employer who wish-
es to make unilateral changes runs the risk that the
union will be deemed the winner of the election and
the changes will be deemed unlawful. Hence, under
Mike O’Connor, the changes here were unlawful.
The Respondent argues that the instant case is gov-
erned by W. A. Krueger Co.,5 rather than by Mike
O’Connor. W. A. Krueger involved a decertification
petition. That is, the union was the incumbent rep-
resentative at the time of the election, and was ulti-
mately deemed to be the loser of the election. The
Board held that unilateral changes made between the
election and the certification of results were unlawful.6
In essence, under Krueger an employer cannot ignore
the incumbent union, by making unilateral changes,
until after the union is declared the loser of the elec-
tion. The Respondent, however, gleans from Krueger
the notion that the status quo ante the election (in that
case, incumbency of the union) shall prevail until the
election results are certified. The Respondent then ar-
gues that this principle applies to this case, i.e., the sta-
tus quo ante the election (nonincumbency of the union)
prevails until the election results are certified.
In our view, the instant case is governed by Mike
O’Connor, rather than by Krueger. The substantive
distinction between these two cases is that Mike O’Con-
nor involved a nonincumbent union competing for cer-
tification, and Krueger involved an incumbent union
whose decertification was sought. The instant case in-
volves the former fact pattern and therefore falls within
the Mike O’Connor rule. The fact that one of the peti-
tions was a decertification petition cannot change the
substance of what was involved here, a nonincumbent
union competing for certification.
Accordingly, under Mike O’Connor, because the
Union was ultimately certified, the Respondent was not
privileged to make unilateral changes during the period
between the election and the certification. With the ex-
ception discussed below, all such changes were viola-
tive of Section 8(a)(5).7
3. The Respondent excepts to the judge’s finding
that it violated the Act in ways not alleged in the com-
plaint. The judge found that the Respondent’s unilat-
eral conduct of requiring its sales employees to con-
tribute $20 per month into an insurance fund, although
not alleged as an unfair labor practice, raised an issue
closely related to other complaint allegations, and was
fully and fairly litigated. Accordingly, he found that
this conduct violated Section 8(a)(5) and (1) of the
Act. (See fn. 16 of the judge’s decision.) We disagree
with the judge and find that this issue was not fully
and fairly litigated, nor was the Respondent on notice
that it would be found to have violated the Act by en-
gaging in such conduct. The General Counsel could at
any time have amended the complaint to allege the $20
monthly contribution as a violation (indeed she amend-
ed the complaint in other ways during the hearing), but
she failed to do so. The amount of discussion devoted
to this issue in the transcript is minimal, and even
though it may be closely related to other complaint al-
legations, we find that there was no airing of this issue
sufficient to conclude that it was fully and fairly liti-
gated.
The other instance in which the judge found a viola-
tion not supported by an underlying complaint allega-
tion was the Respondent’s unilateral institution of a
policy in January 1985 that required sales employees
to pay the Respondent for any damages, up to $500
per occurrence, incurred to company-owned vehicles
they were driving. Unlike the situation discussed
above, this violation was fully and fairly litigated. Al-
though the General Counsel did not amend the com-
plaint to allege that this conduct was a violation, the
subject was discussed at length at trial, and testimony
was presented by both sides. The Respondent argued
895TOYOTA OF BERKELEY
8 No exceptions were filed to the judge’s dismissal of other alleged
unilateral changes.
9 Thirty percent was the rate customarily paid for the sale of used
cars, and other arrangements were commonly worked out for shared
sales, house deals, fleet sales, etc.
10 Sec. 102.119 of the Board’s Rules and Regulations (29 CFR
102.119) states:
11 It is of no moment that Watson-Tansey did not enter an appear-
ance in this case. We still deem her to have been ‘‘engaged in prac-
tice before the Board’’ by her conduct here.
12 This declaration was filed in response to a Notice to Show
Cause issued by the Board on February 25, 1991, which gave Wat-
son-Tansey an opportunity to show cause why she should not be rep-
rimanded.
13 The charge in Case 32–CA–10320 was not even filed until
1989, well after her detail to Region 32 had ended.
14 Member Raudabaugh dissented from the Notice to Show Cause.
At that time, prior to the receipt of any evidence, it was not known
Continued
that this requirement was simply a continuation of a
previous policy which had existed since 1982, and pre-
sented the testimony of its former general manager in
support of this position. The judge rejected his testi-
mony as contrary to the express terms of the agree-
ments signed by the sales employees, which agree-
ments were introduced as exhibits during the hearing.
The judge offered the Respondent an opportunity to
present evidence that in practice it applied the terms of
those agreements to motor vehicles other than the em-
ployees’ own demonstrators, or evidence that it other-
wise had a policy, prior to January 1985, of requiring
its sales staff to reimburse the Respondent up to $500
for damages incurred to any company-owned vehicle
they were driving. The Respondent failed to present
such proof. Thus, we conclude, as did the judge, that
this matter was closely related to other complaint alle-
gations and was fully and fairly litigated. Accordingly,
the judge was justified in finding a violation of Section
8(a)(5) and (1).
4. The General Counsel has excepted to the judge’s
failure to find that the Respondent violated Section
8(a)(5) and (1) by unilaterally reducing new employ-
ees’ sales commissions to 25 percent of gross profit.8
We note that the complaint alleges that ‘‘commencing
on or about March 1, 1985, Respondent reduced the
rate of commission for new salespersons from 35 per-
cent to 25 percent,’’ and further that it engaged in this
conduct without notice to Local 1095 and without af-
fording Local 1095 an opportunity to bargain about the
reduction. The General Counsel adhered to that allega-
tion throughout the course of the hearing and never at-
tempted to amend it.
We find no merit in the General Counsel’s exception
because nowhere in the record is there evidence that
new or beginner sales employees ever received 35 per-
cent commissions. That was the rate paid to journey-
men salespersons for the sale of new cars.9 Beginner
salespersons had a lower schedule of minimum com-
missions, and this practice was written into the parties’
collective-bargaining agreement. Thus, the General
Counsel has failed to carry the burden of showing that
at one time the Respondent paid its beginner sales em-
ployees 35-percent commission, and then lowered it at
some point to 25 percent. Accordingly, this exception
lacks merit.
5. Finally, the General Counsel excepts to the
judge’s failure to find Attorney Nancy Watson-Tansey
in violation of Board Rules for assisting the Respond-
ent’s attorney Bobay in the representation of the Re-
spondent in this matter, on the grounds that the case
was pending in Region 32 during a time when she was
temporarily assigned there. We find merit to this ex-
ception.
The Board’s Rule10 against former employees en-
gaging in practice before the Board in conjunction
with cases pending in any Regional Office to which
the employees were attached during their employment
is a prophylactic one, designed to avoid even the ap-
pearance of impropriety. Hillview Convalescent Center,
266 NLRB 758 (1983). Attorneys leaving their em-
ployment with the Board must exercise great care to
avoid participating in any case which arose in any Re-
gional Office to which they may have been assigned
at any time during their employment, whether or not
they had direct involvement in the case.
No person who has been an employee of the Board and
attached to any of its Regional Offices shall engage in
practice before the Board or its agents in any respect
or in any capacity in connection with any case or pro-
ceeding which was pending in any Regional Office to
which he was attached during the time of his employ-
ment with the Board.
On the facts before us, we find that Watson-Tansey
has committed a technical violation of Board’s Rule
Section 102.119, and should immediately extricate her-
self from any and all involvement with the matter be-
fore us, if she has not already done so.11 We see no
need to take further action against her, because in our
view no prejudice to any party has been demonstrated
by her involvement. According to her declaration12 of
March 18, 1991, during her 3-month assignment to Re-
gion 32 from Region 20 (January through March
1987), the case was in an inactive status and she had
no knowledge whatsoever of its existence.13 Further,
she states that she gained no knowledge or information
about the Respondent or the cases in which it was in-
volved from that assignment, and only learned of the
cases after her employment with the Board had ended.
However, on these facts, which have not been chal-
lenged, we see no reason to disqualify the Respond-
ent’s Attorney Bobay from his representation of the
Respondent, as requested by the Charging Party, nor to
hold a hearing on the allegations against Watson-
Tansey.14
896 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
whether Watson-Tansey had secured ‘‘insider’’ information and
passed it on to Bobay. Hence, Member Raudabuagh would have re-
quired that Watson-Tansey and Bobay respond to the notice and
would not have limited the possible sanction to a reprimand. How-
ever, given the fact that his colleagues limited the notice as they did,
and given the unrebutted evidence secured in response thereto, Mem-
ber Raudabaugh agrees with the disposition reached here.
15 See fn. 36 of the judge’s decision.
16 The Respondent also contends that it had no duty to supply the
information requested by the Union at a time when recognition had
been lawfully withdrawn and the Union had not yet been certified
as the sales employees’ representative. The information at issue,
however, relates to grievances filed during the term of a 1982–1983
collective-bargaining agreement, when the Respondent had an undis-
puted obligation to recognize the Union as the employees’ represent-
ative. Notwithstanding the Respondent’s subsequent lawful with-
drawal of recognition, the Union continued to represent unit employ-
ees with respect to the unfinished business of their grievances. We
find that the Respondent had a continuing obligation to recognize the
Union’s representative status in processing these grievances and to
supply requested information which was relevant to that limited rep-
resentative role. Missouri Portland Cement Co., 291 NLRB 1043,
1044 (1988). Also see Arizona Portland Cement Co., 302 NLRB 36
(1991); Audio Engineering, 302 NLRB 942 (1991).
17 The Ninth Circuit’s decision has since issued but no motion to
vary the remedy has been filed.
6. The Respondent contends in its exceptions and as
supplemented by its request for judicial notice, that the
judge erred by finding that it violated Section 8(a)(5)
and (1) by refusing to provide information requested
by the Union in connection with the three employees
whose discharges were the subject of grievances and
arbitrations. It argues that it has already provided suffi-
cient information for the Union’s purposes, and that
the Union’s request has become moot because the Dis-
trict Court for the Northern District of California has
ruled that the parties’ collective-bargaining agreement
limits the amount of backpay owed by the Respondent
as a result of arbitration awards to $2000 for each of
the three employees involved.
We find no merit in the Respondent’s contentions.
As to its first point, although the Respondent did pro-
vide information to the Union, it is not the payroll in-
formation which the Union requested. The Respondent
provided employees’ W-2 forms, graphs showing me-
dian income and average length of employment, and
information showing the number of employees hired
and working during certain years. However, the
Union’s information request was for payroll records.
The Respondent makes much of the fact that the Union
did not use the ‘‘representative employee’’ formula to
calculate backpay for the grievants, as the judge sug-
gested would be appropriate.15 Without the payroll
data, however, it would have been impossible for the
Union to employ such a formula. The mere fact that
the Union was ultimately able to compute backpay
without the payroll records does not lead logically to
the conclusion that it never needed those records. It
means only that the Union had to use an alternative
theory to arrive at backpay figures to present at arbitra-
tion. We therefore agree with the judge that the Re-
spondent violated Section 8(a)(5) and (1) by refusing
to furnish information requested by the Union in order
to carry out its responsibilities as the exclusive rep-
resentative of the Respondent’s sales employees.16
As to the Respondent’s mootness argument, we note
initially that the district court rulings issued in 1989,
well after each of the Union’s three information re-
quests. Consequently, those rulings did not moot the
issue of whether the Respondent violated Section
8(a)(5) by failing to provide, in a timely manner, infor-
mation which was necessary and relevant to the
Union’s pursuit of reasonable contract-based backpay
claims. Further, in light of the findings that the Re-
spondent did violate Section 8(a)(5), the district court
rulings do not moot the need for a Board remedial
order directing the Respondent to cease and desist
from engaging in such unfair labor practices.
We find that the judge has reasonably accommo-
dated the subsequent judicial rulings by ordering the
Respondent to provide only the information requested
in the Union’s letter of September 16, 1987. That letter
requested information regarding the compensation
package which the Respondent was offering grievant
Johnson in connection with his reinstatement, as well
as information about hours, wages, and conditions ap-
plicable to all sales employees, to ensure that Johnson
was being treated equitably.
As to information requested in other letters, the
judge noted that it would be without any possible rel-
evance to the Union if the district court’s orders are
affirmed by the Court of Appeals for the Ninth Circuit.
Accordingly, he recommended that jurisdiction over
the allegations concerning the Respondent’s unlawful
failure to provide information requested in the Union’s
letters of January 22, 1986, and January 12, 1988, be
retained for the limited purpose of entertaining an ap-
propriate and timely motion for further consideration
of an appropriate remedy should the Ninth Circuit sus-
tain the Union’s appeals of the district court orders.
We agree with the judge and adopt his recommenda-
tion in this regard.17
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 1.
‘‘1. The Respondent violated Section 8(a)(5) and (1)
of the Act by unilaterally requiring its salespersons to
pay more to the Respondent for damaging the dem-
onstrators they rented from the Respondent, than the
$250 limit set by the Respondent’s collective-bar-
gaining agreement with Local 1095.’’
ORDER
The National Labor Relations Board orders that the
Respondent, Southwick Group d/b/a Toyota of Berke-
897TOYOTA OF BERKELEY
1 On June 6, 1984, an amended charge in Case 32–CA–6505 was
filed and served on the Respondent.
2 In its answer to the amended consolidated complaint Respondent
admits it meets the Board’s applicable discretionary jurisdictional
standard and is an employer engaged in commerce within the mean-
ing of Sec. 2(6) and (7) of the Act. It also admits that Local 1095,
during the time material, was a labor organization within the mean-
ing of Sec. 2(5) of the Act. The record establishes that Local 1179
is a labor organization within the meaning of Sec. 2(5) of the Act.
ley, Berkeley, California, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
Valerie Hardy-Mahoney, for the General Counsel.
John R. Bobay, for the Respondent.
David Rosenfeld (Van Bourg, Weinberg, Roger & Rosenfeld),
for the Charging Parties.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge. The
hearing in this consolidated proceeding, held on March 12–
14, 1990, was based on the allegations contained in an
amended consolidated complaint issued August 7, 1989, by
the Regional Director for Region 32 of the National Labor
Relations Board (Board), on behalf of the Board’s General
Counsel, and on an amendment to the amended consolidated
complaint issued August 18, 1989, an amendment to the
amended consolidated complaint issued January 29, 1990, a
third amendment to the amended consolidated complaint
issued February 22, 1990, a March 7, 1990 motion to further
amend the amended consolidated complaint, which was
granted at the outset of the hearing, and further amendments
made during the hearing.
The aforesaid amended consolidated complaint and the
further amendments thereto are based on unfair labor practice
charges filed by Automobile Salesmens Union Local 1095,
United Food and Commercial Workers Union, AFL–CIO
(Local 1095) and by United Food and Commercial Workers
Union, Local 1179, Automobile Sales Division (Local 1179),
as follows: Local 1095 filed charges against Southwick
Group d/b/a Toyota of Berkeley (Respondent) in Cases 32–
CA–6505, 32–CA–7233, 32–CA–7846, and 32–CA–9362,
which were served on Respondent on May 25, 1984,1 May
8, 1985, February 18, 1986, and December 30, 1987, respec-
tively. Local 1179 filed a charge in Case 32–CA–10320
against Respondent, which on May 8, 1989, was served on
Respondent.
The amended consolidated complaint, as further amended,
alleges in substance that Respondent violated Section 8(a)(5)
and (1) of the National Labor Relations Act (Act), as fol-
lows: commencing on various dates in 1982, 1983, 1984, and
1985 unilaterally changed specified terms and conditions of
employment of its employees represented by Local 1095
without affording Local 1095 an opportunity to negotiate
about such changes and their effects upon the employees; on
various dated in 1986, 1987, and 1988 refused to furnish
Local 1095 with certain information concerning employees’
wages and hours of employment, which the complaint alleges
was relevant and necessary to Local 1095 in carrying out its
statutory duties and responsibilities as the employees’ bar-
gaining representative; and, since November 1, 1988, Local
1179 has been the legal successor to Local 1095 as the ex-
clusive collective-bargaining representative of an appropriate
unit of Respondent’s employees, and since on or about
March 7, 1989, Respondent has failed and refused to recog-
nize and bargain with Local 1179 as the exclusive bargaining
representative of those employees. In its answer to the
amended consolidated complaint and in its answer to the sev-
eral amendments thereto, Respondent denies it engaged in
the alleged unfair labor practices, denies that Local 1179 is
the legal successor to Local 1095, and, as an affirmative de-
fense, contends that the complaint allegations involving the
unilateral changes in the employees’ terms and conditions of
employment should be dismissed in their entirety because
they are barred by the limitations proviso to Section 10(b)
of the Act.2
On the entire record, and from my observation of the de-
meanor of the witnesses, and having considered the
posthearing briefs, I make the following
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Background
The Respondent is a corporation which owns and operates
several motor vehicle dealerships. The only dealership in-
volved in this proceeding is located in Berkeley, California,
doing business as Toyota of Berkeley, where Respondent is
engaged in the retail sale and service of motor vehicles.
The salespersons employed by Respondent at Toyota of
Berkeley were represented by Local 1095 from at least 1980
until December 13, 1983, and were covered by a collective-
bargaining agreement between Local 1095 and Respondent,
which by its terms was effective from October 1, 1982,
through May 31, 1983.
In 1983, prior to December 13, 1983, negotiators for Re-
spondent and Local 1095 met and bargained on several occa-
sions for a successor contract, but with no success.
On December 13, 1983, one of Toyota of Berkeley’s sales-
persons filed a petition with the Board’s Regional Director
for Region 32, which was docketed as Case 32–RD–552. The
petition questioned Local 1095’s representative status and
sought a Board-conducted secret-ballot election to determine
whether or not the salespersons employed at Toyota of
Berkeley still wanted Local 1095’s representation. On the
same day, December 13, Respondent withdrew recognition
from Local 1095, as the salespersons’ exclusive bargaining
representative. This withdrawal was apparently based on Re-
spondent’s good-faith doubt of Local 1095’s continued ma-
jority status. Subsequently, on December 19, 1983, Respond-
ent filed a petition with the Board’s Regional Director for
Region 32, which was docketed as Case 32–RM–362. The
petition questioned Local 1095’s status as the representative
of Respondent’s motor vehicle salespersons and asked that
the Board conduct a secret-ballot election to determine
whether or not the salespersons desired to be represented by
that union. The Regional Director consolidated Case 32–
RM–362 with Case 32–RD–552.
Pursuant to a Decision and Direction of Election issued in
Cases 32–RD–552 and 32–RM–362, by the Board’s Regional
898 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Eckels, Fontes, and Johnson, employed by Respondent as sales-
persons, had been terminated during the term of the 1982–1983 col-
lective-bargaining agreement between Local 1095 and Respondent.
Local 1095 had filed grievances under the agreement’s grievance-ar-
bitration provisions, protesting their discharges.
Director on January 24, 1984, a secret-ballot election was
conducted on Respondent’s premises on February 22, 1984,
in a unit of Respondent’s full-time and regular part-time
salespersons. The official tally of ballots shows that of ap-
proximately 10 eligible voters, 5 cast ballots for and 5 cast
ballots against Local 1095. There were five challenged bal-
lots, which were sufficient to affect the results of the elec-
tion. All three parties, the Respondent, the Employee Peti-
tioner, and Local 1095, filed timely objections to the elec-
tion.
On May 11, 1984, the Regional Director issued a supple-
mental decision on objections and challenged ballots, in
Cases 32–RD–552 and 32–RM–362, which overruled in their
entirety the objections filed by Respondent and the Employee
Petitioner, and sustained the challenges to two of the five
challenged ballots. The Regional Director deferred his deci-
sion on the challenges to the ballots cast by Bill Eckels, Ed-
ward Fontes, and Floyd Johnson until such time as the griev-
ances filed by Local 1095 protesting their discharges had
been resolved under the grievance-arbitration procedure of
the parties’ collective-bargaining agreement.3 In addition, he
deferred his decision on Local 1095’s objections until such
time as the results of the election were conclusively deter-
mined.
Thereafter, on July 1, 1988, the Regional Director issued
a second supplemental decision on challenged ballots and
order, which overruled the challenges to the ballots of
Eckels, Fontes’ and Johnson and ordered that their ballots be
opened and counted and that a revised tally of ballots issue.
In overruling the challenges to their ballots, the Regional Di-
rector concluded that the arbitrator’s opinions and awards
which had directed Respondent to reinstate Eckels, Fontes,
and Johnson had been upheld by the courts and, in view of
this, that these employees had been employees of the Re-
spondent at the time of the election and thus were eligible
to vote.
On July 13, 1988, Respondent filed with the Board a re-
quest for review of the Regional Director’s above-described
second supplemental decision. Respondent’s request for re-
view challenged the Regional Director’s decision in just one
respect; Respondent argued that the Regional Director erred
in concluding that ‘‘the arbitrator’s opinion and award over
the discharge of Ed Fontes had been upheld,’’ arguing the
the court of appeals had not confirmed the award. On Sep-
tember 28, 1988, the Board issued an order denying Re-
spondent’s above-described request for review.
On October 12, 1988, the Board’s Regional Director
opened the challenged ballots cast by Eckels, Fontes, and
Johnson and on that date issued a revised tally of ballots
which showed that Local 1095 had received 8 of the 13
votes counted, a majority.
On October 17, 1988, the Board’s Regional Director, on
behalf of the Board, issued a ‘‘Certification of Representa-
tive’’ certifying that Local 1095 was the exclusive collective-
bargaining representative of ‘‘all full time and regular part
time employees engaged in the sale of new and used auto-
mobiles and trucks employed by [Respondent] at its Berke-
ley, California facility; excluding all employees covered by
other collective-bargaining agreements, office clerical em-
ployees, guards and supervisors as defined in the Act.’’
In August 1988 Local 1095’s executive board appointed a
merger committee to explore the possibility of Local 1095
merging with another labor organization. In September 1988
the merger committee recommended that Local 1095 merge
with Local 1179. Subsequently, as described in detail supra,
on October 5, 1988, Local 1095’s membership voted to
merge with Local 1179 and said merger became effective
November 1, 1988, at which time Local 1095 ceased to exist.
As described in detail supra, following the merger of
Local 1095 into Local 1179, Respondent refused to recognize
and bargain with Local 1179 as the successor to Local 1095.
B. The Validity of Local 1095’s Certification
In its answer to the complaint Respondent alleged, as an
affirmative defense, that the Board’s October 17, 1988 cer-
tification of Local 1095, as the exclusive collective-bar-
gaining representative of Respondent’s motor vehicle sales-
persons, was not valid because the Board’s Regional Director
erred in overruling the challenges to the ballots cast by
Eckels, Johnson’ and Fontes. However, as described supra,
Respondent did not request the Board to review the Regional
Director’s rulings on the challenges to the ballots cast by
Eckels and Johnson, as provided in Section 102.67(b) of the
Board’s Rules and Regulations. This precludes Respondent
from attacking those rulings before the Board in the instant
related unfair labor practice proceeding. S. S. Kresge Co.,
169 NLRB 442, 443 (1968); Retail Clerks Local 1401
(Zinke’s Food) v. NLRB, 463 F.2d 316 (D.C. Cir. 1972). For,
it is settled that, absent newly discovered or previously un-
available evidence, a party may not relitigate in an 8(a)(5)
proceeding before the Board issues which were or could have
been raised in a related representation proceeding. Pittsburgh
Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941); NLRB
v. Tennessee Packers, 379 F.2d 172, 179–180 (6th Cir.
1967). Therefore, even assuming the Regional Director erred
when, with the approval of the Board, he decided that the
challenge to Fontes’ ballot should be overruled, it would not
taint Local 1095’s certification because, even without Fontes’
vote, Local 1095 would still have secured a majority of the
votes cast.
In any event, assuming Respondent in this proceeding is
not precluded from contesting the ballots of Johnson and
Eckels, as well as Fontes’ ballot, the evidence it presented
failed to establish that either Eckels or Johnson or Fontes
were not entitled to reinstatement pursuant to the arbitrators’
awards. Quite the opposite, the evidence Respondent pre-
sented, Respondent’s Exhibits 13 and 14, reinforces the Re-
gional Director’s conclusion that Eckels, Johnson, and Fontes
were each entitled to reinstatement pursuant to the arbitra-
tors’ awards.
It is for all the above reasons that I reject Respondent’s
argument that Local 1095’s October 17, 1988 certification is
invalid.
C. The Refusal to Recognize and Bargain with
Local 1179
As I have found, supra, Local 1095 was certified by the
Board on October 17, 1988, to represent the motor vehicle
899TOYOTA OF BERKELEY
4 The amended complaint alleges essentially that since ‘‘on or
about March 7, 1989’’ Respondent has failed and refused to recog-
nize and bargain with Local 1179 as the exclusive bargaining rep-
resentative of the motor vehicle salespersons employed by Respond-
ent at Toyota of Berkeley, thereby violating Sec. 8(a)(5) and (1) of
the Act.
5 Although Seattle-First involved an independent local union’s af-
filiation with an international organization, the same standards apply
to other union organizational restructuring, such as a merger.
Hydrotherm, Inc., 280 NLRB 1425, 1428 (1986). See also May De-
partment Stores Co., 289 NLRB 661 fn. 4 (1988).
6 In Seattle-First the Supreme Court expressly declined to decide
whether, once the Board has found continuity of the representative
after a reorganization, the Board is authorized to find that the rep-
resentative has lost its bargaining rights solely on the grounds that
the reorganization was accomplished in disregard of the Board’s
standard of due-process. 475 U.S. at 199, fn. 6. Since in the instant
case I have concluded, infra, that the Board’s traditional due process
criteria were met, I have not considered this issue.
salespersons employed by Respondent at Toyota of Berkeley,
but on November 1, 1988, Local 1095 ceased to exist when
it merged with and became a part of Local 1179. Subse-
quently, on November 2, 1988, Local 1095’s attorney, David
Rosenfeld, wrote Respondent’s representative, Labor Rela-
tions Consultant David Comb, and demanded that Respond-
ent commence collective-bargaining negotiations with Local
1095 for a contract covering the employees in the certified
bargaining unit. In response Comb wrote Attorney Rosenfeld
and acknowledged Respondent’s bargaining obligation to
Local 1095 and stated Respondent was available to begin ne-
gotiations with Local 1095’s negotiator, Yates Kendrick, at
times and places mutually agreeable, and asked that Kendrick
suggest dates for the negotiation sessions. However, prior to
the start of the negotiations, Comb wrote Attorney Rosenfeld
on February 9, 1989, that ‘‘it is my information that . . .
Local 1095 no longer exists. Accordingly, the [Respondent]
has a good faith doubt it has any obligation to either recog-
nize or bargain with Mr. Kendrick or whatever Union he
purports to represent.’’ Attorney Rosenfeld responded by let-
ter to Comb dated March 7, 1989, in which he informed
Comb that Local 1095 had merged into Local 1179, but that
‘‘a continuity of representation has been maintained,’’ and
explained why, in his opinion, there was a continuity of rep-
resentation, and further informed Comb that since Local
1179 was the successor to Local 1095, Respondent was le-
gally obligated to recognize and bargain with Local 1179.
Respondent failed to respond to Attorney Rosenfeld’s March
7, 1989 letter. I therefore find that on or about March 7,
1989, Respondent refused to recognize and bargain with
Local 1179 as the exclusive collective-bargaining representa-
tive of the motor vehicle salespersons employed by Respond-
ent at Toyota of Berkeley. The amended complaint alleges
that by engaging in this conduct Respondent violated Section
8(a)(5) and (1) of the Act.4 The merit of this allegation de-
pends on whether Local 1179 lawfully succeeded to Local
1095’s October 17, 1988 certification by the Board, as the
exclusive bargaining representative of the motor vehicle
salespersons employed by Respondent at Toyota of Berkeley.
The complaint, in this respect, alleges that when, on Novem-
ber 1, 1988, Local 1095 merged with Local 1179, and be-
came a part of Local 1179, that Local 1179 ‘‘maintained a
continuity of representation of the [employees employed by
Respondent in the unit certified by the Board on October 17,
1988, in Cases 32–RM–362 and 32–RD–552], and is the
legal successor to Local 1095.’’ The applicable legal prin-
ciples are set forth and the pertinent evidence is evaluated,
in the light of those principles, below.
The Applicable Legal Principles
The law is settled that when a local union decides to affil-
iate or merge with another labor organization, that such orga-
nizational changes standing alone do not affect the represent-
ative status of the bargaining agent or terminate an employ-
er’s duty to bargain with that agent. E.g., NLRB v. Insulfab
Plastics, 789 F.2d 961 (1st Cir. 1986); NLRB v. Newspapers,
Inc., 515 F.2d 334 (5th Cir. 1975). See also NLRB v. Finan-
cial Institution Employees (Seattle-First), 475 U.S. 192
(1986) . This is so because ‘‘[t]he industrial stability sought
by the Act would unnecessarily be disturbed if every union
organizational adjustment were to result in displacement of
the employer-bargaining representative relationship,’’ thus a
change in union structure will not affect the union’s status
as representative of the unit employees ‘‘unless the Board
finds that the [change] raises a question of representation’’
under Section 9(a) of the Act. Seattle-First, supra at 202–
203, 209 (1986).5 Accordingly, the Board will not automati-
cally permit name changes, mergers, affiliations, or other
union organizational changes to automatically disrupt an ex-
isting union-employer collective-bargaining relationship.
Rather the Board applies its traditional two-pronged test to
determine whether an employer is obligated to recognize and
bargain with a merged union—i.e., whether the merger vote
occurred under ‘‘circumstances satisfying minimum due
process’’ and whether there was substantial continuity be-
tween the pre- and post-merger union. News/Sun-Sentinel
Co., 290 NLRB 1171 (1988), enfd. 890 F.2d 430 (D.C. Cir.
1989); May Department Stores Co., 289 NLRB 661 (1988),
enfd. 897 F.2d 221 (7th Cir. 1990).
The Board has long held that an employer’s bargaining ob-
ligation continues after a merger or affiliation only if the
union members were given a fair opportunity to consider and
vote on the change. This requirement has traditionally in-
volved the Board in examining whether the relevant election
was conducted in accordance with ‘‘due process safeguards,’’
including notice of the election to all eligible voters, an op-
portunity for voters to discuss the election, and reasonable
precautions to maintain ballot secrecy. See Newspapers, Inc.,
210 NLRB 8, 9 (1974), enfd. 515 F.2d 334 (5th Cir. 1975).
See also May Department Stores Co., 897 F.2d 221, supra.
The failure to permit employees who have not become union
members to participate in the merger decision and election
does not violate these due-process safeguards. Seattle-First,
supra; News/Sun Sentinel Co., 290 NLRB 1171 (1988), enfd.
890 F.2d 430 (D.C. Cir. 1989). Nor does such an election
have to comport with the standards of a Board-conducted
certification election. Rather, ‘‘the Board requires that the
vote itself occurs under circumstances satisfying minimum
due process,’’ and no specific procedures are mandated.
Hammond Publishers, 286 NLRB 49 (1987); East Dayton
Tool Co., 190 NLRB 577, 579 (1971).6 Also the employer
who challenges a merger vote has the burden of making an
affirmative showing of the insufficiency of the reorganization
procedure. News/Sun Sentinel Co., supra; Insulfab Plastics,
900 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Local 1095’s secretary-treasurer, Yates Kendrick, who personally
mailed these notices, credibly testified he mailed them prior to the
September 29 executive board meeting, because the merger com-
mittee wanted to give the members notice of the proposed merger
at least 15 days prior to both the October 4 membership meeting and
the October 5 vote on the merger. Kendrick explained that if, on
September 29, Local 1095’s executive board had rejected the merger
committee’s recommendation, the scheduled discussion of the merger
at the October 4 membership meeting and the scheduled October 5
merger vote would have been called off.
8 Based on the testimony of Yates Kendrick. On October 5, 1988,
at the conclusion of the election, the sealed envelope which con-
tained the ballots, the voting eligibility list, and the tally of ballots,
was placed in Local 1095’s office safe. The fact that this envelope
was lost, apparently when the contents of the safe were removed
from Local 1095’s to Local 1179’s office, subsequent to the merger,
does not detract from Kendrick’s testimony concerning the results of
the election. Kendrick’s testimonial demeanor was good; he im-
pressed me as a sincere and conscientious witness.
274 NLRB 817, 821 (1985), enfd. 789 F.2d 961 (1st Cir.
1986).
In determining whether a ‘‘question concerning rep-
resentation’’ exists because of a lack of continuity, the
Board is not directly inquiring into whether there is ma-
jority support for the labor organization after the
changes at issue, but rather is seeking to determine
whether the changes are so great that a new organiza-
tion has come into being—one that should be required
to establish its status as a bargaining representative
through the same means that any labor organization is
required to use in the first instance. In Western Com-
mercial Transport, 288 NLRB 214 (1988) the Board
stated: The focus of inquiry is on whether the changes
are ‘‘sufficiently dramatic to alter the union’s identity,’’
so as to raise a question concerning representation. May
Department Stores Co., 289 NLRB 661, supra, citing
Seattle-First, 475 U.S. 192, 206 (1986). See also
News/Sun Sentinel Co., at fn. 1, and May Department
Stores Co. v. NLRB, supra. Consequently, the Board
considers a range of factors including the continued
leadership responsibilities of the existing union offi-
cials, the perpetuation of membership rights and duties,
the continuance of the manner in which contract nego-
tiations, administration, and grievance processing are
effectuated, and the preservation of the certified rep-
resentative’s assets, books, and physical facilities. E.g.,
Western Commercial Transport, supra. However, in ap-
plying this fact specific approach ‘‘no strict check list
is used,’’ rather ‘‘[t]he Board considers the totality of
a situation.’’ May Department Stores Co. v. NLRB,
quoting with approval Yates Industries, 264 NLRB
1237, 1250 (1982). And, the burden of proving a
change in a union’s identity rests with the respondent-
employer. H. B. Design & Mfg., 299 NLRB 73 (1990);
Insulfab Plastics, 274 NLRB 817, 821 (1985), enfd.
789 F.2d 961 (1st Cir. 1986).
The Issue of ‘‘Due Process’’
Early in September 1988, Local 1095’s executive board
appointed a merger committee to explore a merger with an-
other labor organization. Later in September, the merger
committee met with officials of Local 1179 and discussed the
possibility of Local 1095 merging with that union. As a re-
sult of those discussions, Local 1095’s merger committee
concluded it would be in the best interest of Local 1095 to
merge with Local 1179, and on September 29, 1988, at a
meeting of Local 1095’s executive board, recommended that
Local 1095 merge with Local 1179. The executive board
agreed and decided to recommend to Local 1095’s members
that such a merger take place.
On October 4, 1988, at a meeting of Local 1095’s mem-
bership, the executive board of Local 1095 presented to the
members and discussed with them the proposed merger. Fif-
teen days before the October 4 membership meeting, Local
1095 mailed notices to all of its members which informed
them of the proposed merger with Local 1179 and notified
them that at the membership meeting scheduled for October
4, 1988, the proposed merger would be on the agenda for
discussion and that the details of the merger would be ex-
plained to the members at that time, and that on the fol-
lowing day, October 5, the members would be afforded the
opportunity to vote on whether or not they wanted Local
1095 to merge with Local 1179.7 In addition, Local 1095’s
monthly newsletter for September 1988, which the members
of Local 1095 received during September 1988, contained a
front page article entitled ‘‘Members To Vote On Local 1179
Merger,’’ which notified the members that on October 5 they
would have the opportunity to vote on a merger between
Local 1095 and Local 1179 and that the subject of the merg-
er would be the main topic of discussion at the general mem-
bership meeting scheduled for October 4. The newsletter arti-
cle, as did the above-described notice mailed by Kendrick to
the members, gave the location and time of the October 4
membership meeting and stated where the October 5 merger
vote would take place and the hours for voting. The article
also quoted Kendrick and other officials of Local 1095, as
well as Local 1179’s president, as being in favor of the
merger and gave their reasons for supporting the merger.
On October 4 approximately 100 Local 1095 members at-
tended the scheduled membership meeting. During the meet-
ing documents pertaining to the merger were either read to
the members or given to them to read, and the terms and
conditions of the merger were explained to the members and
there was a discussion by the members about the merger.
On October 5, 1988, as scheduled, a secret ballot election
was held at Local 1095’s office concerning the proposed
merger. Of Local 1095’s approximately 370 members, 120
cast ballots. Each voter, after having his or her name checked
off by the three members of Local 1095 who served as elec-
tion observers, went into another room where a voting booth
had been set up and, in the privacy of the booth, marked
their ballot and then placed it in a ballot box. The result of
the election was that 119 members voted for and 1 voted
against the merger.8 No one raised any objection to the me-
chanics of the voting or complained that he or she was de-
nied due process. Thereafter, on October 28, 1988, Local
1179 afforded its members an opportunity to vote on the pro-
posed merger, and of the 28 members of Local 1179 who
voted, 19 voted for and 9 against the merger. The merger
was effective November 1, 1988, on which date Local 1095
ceased to exist.
In sum, as described in detail supra, Local 1095 gave its
members sufficient notice of the October 5, 1988 merger
vote, an opportunity to discuss and make an informed deci-
901TOYOTA OF BERKELEY
9 Respondent bore the burden of proving an ‘‘irregularity in the
voting process as it is [Respondent] that is relying on the irregularity
as justification for its refusal to bargain.’’ News/Sun Sentinel Co.,
supra; Insulfab Plastics, supra.
10 In June 1988 Local 1095’s president, Richard Salvaressa, re-
signed for health reasons and Local 1095’s executive board ap-
pointed Kendrick as acting president. Subsequently, on October 27,
1988, the executive board made his appointment as president perma-
nent because they concluded it would be easier to effect the merger
of the two local unions if Kendrick occupied the position of presi-
dent, as well as secretary-treasurer.
sion regarding the proposed merger, and an opportunity to
vote. It is equally clear, as described in detail supra, that the
integrity and secrecy of the ballots were maintained. In this
regard, I also note that there was no evidence that the bal-
loting was tainted in any manner.9 Quite the opposite, it is
undisputed that no one complained that he or she was denied
due process in connection with the voting or otherwise com-
plained about the manner in which the election was con-
ducted. In view of the foregoing, I find that due process was
observed in the conduct of the October 5, 1988 merger vote.
I reject Respondent’s contention that the merger vote was
invalid under the Act because it was conducted in derogation
of the provisions in Local 1095’s constitution and bylaws
which provided that Local 1095 could not entertain a resolu-
tion to surrender its charter to its international union unless
its members were notified of this resolution by certified mail
at least 60 days prior to the regular membership meeting at
which such a resolution could be voted upon, and which fur-
ther provided that Local 1095’s bylaws could be amended
only after certain procedures were followed, which were not
followed in connection with the October 5 merger vote. As-
suming arguendo, that these constitution and bylaw provi-
sions were meant to apply to the instant merger vote, Local
1095’s failure to comply with them did not taint the merger
vote because Local 1095’s members were notified of the pro-
posed merger and the merger vote approximately 15 days in
advance of the merger vote and thus had approximately 2
full weeks to consider the merger before casting their ballots.
See J. Ray McDermott & Co., 223 NLRB 857–857 (1976),
enfd. 571 F.2d 850, 855–856 (5th Cir. 1978) (notice mailed
4 days before meeting sufficient to give members adequate
opportunity for debate). Respondent has cited no authority
for the proposition that where, as here, a merger vote has
been conducted only after the union members were given a
fair opportunity to consider and vote on the merger, that the
vote will be declared invalid for purposes of the Act, if the
vote did not meet the more stringent requirements set forth
in the union’s constitution and/or bylaws. The law is to the
contrary. J. Ray McDermott & Co., supra at 859–860, Ham-
ilton Tool Co., 190 NLRB 571, 574 fn. 8 (1971).
The Issue of ‘‘Continuity’’
Local 1095, whose office was in San Leandro, California,
and Local 1179, whose office is in Martinez, California,
were sister locals, affiliated with the same international orga-
nization, the United Food & Commercial Workers Inter-
national Union. They were bound by their international
union’s constitution, but maintained separate bylaws.
Local 1095’s trade jurisdiction encompassed those persons
who performed work connected with or related to the sale,
distribution or the leasing of motor vehicles, and its geo-
graphic jurisdiction encompassed all of the counties in cen-
tral and northern California including Contra Costa County.
During the time material, immediately prior to the merger of
the two local unions, Local 1095 had approximately 370
members and net assets of $338,844.
Local 1179’s trade jurisdiction encompasses those persons
who sell goods or services of any kind and its geographical
jurisdiction is limited to one county in Northern California,
Contra Costa. During the time material, immediately prior to
the merger of the two local unions, Local 1179 had approxi-
mately 5000 members and net assets of almost $2 million.
Local 1095, immediately prior to the merger, represented
motor vehicle salespersons employed at 31 or 32 motor vehi-
cle dealerships and had collective-bargaining contracts with
28 of those dealerships.
Local 1179, immediately prior to the merger, had collec-
tive-bargaining contracts with approximately 30 different em-
ployers covering employees employed in grocery, department
and hardware stores, and only one contract with a motor ve-
hicle dealership.
Yates Kendrick, who at the time of the merger was Local
1095’s president and secretary-treasurer, testified that the rea-
son why Local 1095 merged with Local 1179 was that Local
1095 was not growing and in the past 2 years had lost ap-
proximately 100 members, and by merging with Local 1179,
what had formerly been Local 1095 would have more re-
sources available for its use, yet, under the terms of the
merger, not lose any of its jurisdiction and be able to main-
tain the same goals.
Immediately prior to the merger, Yates Kendrick was
Local 1095’s president and secretary-treasurer.10 Its remain-
ing officers consisted of three vice presidents and a recording
secretary.
None of Local 1095’s officers became officials of Local
1179, except for Kendrick, who, as a condition of the merg-
er, became one of Local 1179’s vice presidents. In this re-
gard, the record shows that as a part of the parties’ merger
agreement, Local 1179 amended its bylaws so that one of its
nine vice presidents would be from its newly created Auto-
mobile Sales Division, and Kendrick was appointed vice
president pursuant to that amendment. As a vice president of
Local 1179, Kendrick automatically became a member of
Local 1179’s executive board. The record also reveals that
the vice presidents of Local 1179, including the one reserved
for a member of Local 1179’s Automobile Sales Division,
are elected by Local 1179’s entire membership.
Following the merger, Kendrick moved his office from
Local 1095’s San Leandro facility to Local 1179’s office in
Martinez. However, Local 1095’s San Leandro facility is still
being used by Local 1179’s Automobile Sales Division.
Since the merger it has been open for business 3 days a
week, from 9 a.m. to 4 p.m. The Automobile Sales Division
uses the San Leandro facility to store records pertaining to
members of the Division, to sign up new members for the
Division, to conduct contract negotiations, and Kendrick
meets there with members of the Division.
Prior to the merger Local 1095 employed two employees,
Kendrick and an office clerical. After the merger Kendrick
remained in the employ of Local 1179’s Automobile Sales
Division and performed essentially the same duties as an em-
902 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 The dues of Local 1179 members, other than the members of
its Automobile Sales Division, are based on a percentage of the
members’ rates of pay.
12 In December 1989, based on Kendrick’s recommendation, Local
1179’s president hired William Silva to be a business representative
for the Automobile Sales Division to assist Kendrick in admin-
istering the Automobile Sales Division’s collective-bargaining con-
tracts. Neither Kendrick nor Silva administer any contracts on behalf
of Local 1179, other than those between employers and the Auto-
mobile Sales Division.
13 In handling the contractual grievances filed by employees since
the merger, Kendrick has the authority to refuse to pursue an em-
ployee’s grievance, but the grievants have the right to appeal his de-
cision to Local 1179’s executive board.
ployee, as he had performed previously. The office clerical
was terminated, but was replaced with another office clerical,
hired on November 1, 1988. This new hire previously had
been employed by Local 1095 as a clerical prior to the merg-
er.
One of the conditions of the merger was that Local 1179
establish an Automobile Sales Division and that Yates
Kendrick, Local 1095’s president and secretary-treasurer, be
employed as the director of the newly created Automobile
Sales Division, at essentially the same salary he received
from Local 1095, and become one of Local 1179’s vice
presidents and a member of its executive board. Another
condition of the merger was that the geographic jurisdiction
and trade jurisdiction of the newly created Automobile Sales
Division be identical to Local 1095’s geographic and trade
jurisdiction. Accordingly, when Local 1095 merged with and
became a part of Local 1179, Local 1095’s members became
members of a separate division of Local 1179, known as the
Automobile Sales Division, United Food & Commercial
Workers Union, Local 1179.
The Automobile Sales Division of Local 1179 has a much
larger geographic and a much narrower trade jurisdiction
than Local 1095’s geographic and trade jurisdiction. In addi-
tion, the members of Local 1179’s Automobile Sales Divi-
sion pay monthly dues of $37, essentially the same amount
of dues they paid while members of Local 1095, whereas the
other members of Local 1179 have an entirely different dues
structure and pay their dues on a quarterly basis.11 The
former members of Local 1095, who, as a result of the merg-
er, became members of Local 1179’s Automobile Sales Divi-
sion, paid no initiation fee and the initiation fee for new
members of the Automobile Sales Division is the same as it
had been for new members of Local 1095.
Subsequent to the merger, all of the employers who had
recognized Local 1095 as their motor vehicle salespersons’
collective-bargaining representative continued to recognize
Local 1179’s Automobile Sales Division as their sales-
persons’ collective-bargaining representative and the employ-
ers who had collective-bargaining contracts with Local 1095
recognized that Local 1179’s Automobile Sales Division had
succeeded to Local 1095’s rights and obligations under those
contracts.
Prior to the merger, Local 1095’s secretary-treasurer Yates
Kendrick administered the aforesaid collective-bargaining
contracts and was the representative of Local 1095 who ne-
gotiated and signed those contracts. Likewise, it was
Kendrick who handled and processed the contractual griev-
ances filed by employees against employers. Subsequent to
the merger, Kendrick, in his capacity as director of the Auto-
mobile Sales Division of Local 1179, has administered the
aforesaid contracts and the new or successor contracts en-
tered into by the Automobile Sales Division,12 and is the
person who handles and processes employee grievances filed
under those contracts.13 Kendrick is also the one, who, on
behalf of the Automobile Sales Division, negotiates new con-
tracts with employers, and, with Local 1179’s president,
signs these contracts on behalf of the Automobile Sales Divi-
sion. The record reveals that these contracts are entered into
between an employer and the Automobile Sales Division,
United Food & Commercial Workers Union, Local 1179,
rather than simply by Local 1179. During the contract nego-
tiations which have taken place since the merger, various of-
ficials of Local 1179 have been present and occasionally
some of them participate in the negotiations. However,
Kendrick has been the primary spokesperson for the union in
these negotiations.
Prior to the merger, Kendrick, on behalf of Local 1095,
was processing a contractual grievance for one employee and
following the merger, on behalf of Local 1179’s Automobile
Sales Division, Kendrick continued to process that grievance.
During his tenure as Local 1095’s secretary-treasurer,
Kendrick had the authority to call a strike, and since the
merger has had the same authority as the director of Local
1179’s Automobile Sales Division. In those instances when
a strike vote is called involving an employer whose employ-
ees are represented by the Automobile Sales Division, only
those employee-members of Local 1179’s Automobile Sales
Division employed by that employer are entitled to vote.
Likewise, only those employee-members of Local 1179’s
Automobile Sales Division who work for employers with
contracts with the Division have the right to participate in
contract ratification votes.
Since Local 1095 and Local 1179 were sister locals of the
same international organization, the United Food and Com-
mercial Workers Union, they were bound by the same con-
stitution, and after the merger Local 1179’s Automobile
Sales Division continued to be bound by that constitution.
However, Local 1095 and Local 1179 had different bylaws
and after the merger the Automobile Sales Division was
bound by Local 1179’s bylaws. However, as sister locals,
their bylaws were either identical or substantially the same
in several areas. Moreover, as I have previously indicated,
Local 1179’s bylaws were amended in certain significant re-
spects, as a condition of the merger, to accommodate the
specific needs of Local 1095’s membership. Local 1179’s
bylaws were amended to establish a semiautonomous Auto-
mobile Sales Division within Local 1179 for the former
members of Local 1095. The bylaws were further amended
so as to give the Automobile Sales Division of Local 1179
the identical trade and geographic jurisdiction as Local
1095’s and to provide that the members of the Division
would have essentially the same dues and initiation fees and
payment schedule as Local 1095. Also, so the members of
the Automobile Sales Division interests would be sure to
have a voice among the officials of Local 1179, the bylaws
were amended to provide that one of Local 1179’s constitu-
tional officers, a vice president, would have to be from the
Automobile Sales Division. Lastly, in order to take into ac-
count the industry in which the members of the Automobile
903TOYOTA OF BERKELEY
14 I have considered that the members whose grievances are denied
by Kendrick have the right to appeal his decision to Local 1179’s
executive board. But, there is no showing that in the more than 1
year since the merger, this has ever occurred, or, if it did occur, that
Local 1179’s executive board overruled Kendrick’s decision. It is
also significant that under Local 1095’s bylaws, the members of
Local 1179’s Automobile Sales Division, while members of Local
1095, also had the right to appeal Kendrick’s denial of their contrac-
tual grievances to Local 1095’s executive board.
Sales Division were employed, the automobile sales industry,
the section of Local 1179’s bylaws dealing with the duties
and obligations of its members was amended to provide that
the members of the Automobile Sales Division were subject
to discipline for ‘‘flagrantly violating good business ethics or
failing to sell automobiles in an ethical and legitimate man-
ner’’ and for ‘‘making any outside deals that infringe in any
way upon the rights of an employer or members,’’ provisions
which had been included in Local 1095’s bylaws.
The title to all of Local 1095’s assets—cash, equipment,
automobiles, etc.—was immediately transferred to Local
1179 on the date of the merger and, for the most part, Local
1095’s physical assets were transferred to Local 1179’s Mar-
tinez office. No separate account or budget was created for
Local 1179’s Automobile Sales Division and the dues paid
by the members of the Automobile Sales Division are paid
into Local 1179’s general fund.
Before the merger, Local 1095 held quarterly membership
meetings, whereas Local 1179’s Automobile Sales Division
does not hold membership meetings separate and apart from
Local 1179’s general membership meetings. Also the mem-
bers of the Automobile Sales Division of Local 1179 do not
vote separately for delegates to the international union con-
vention, rather these delegates are elected by all of Local
1179’s members.
Attorney David Rosenfeld was Local 1095’s attorney and
following the merger had been the attorney for Local 1179’s
Automobile Sales Division, even though he is not Local
1179’s attorney.
I am of the opinion that while the merger of Local 1095
into Local 1179 to form the Automobile Sales Division of
Local 1179 resulted in changes, that the Automobile Sales
Division of Local 1179 retained enough of Local 1095’s old
character to render those changes insufficiently dramatic so
that the merger did not raise a question concerning represen-
tation.
Initially, I note that this case involves a merger between
two sister locals affiliated with the same international organi-
zation. Mergers of this kind, in contrast to mergers of small
local independent unions with international organizations,
have less inherent potential for significant change. Note,
Union Affiliation and Collective Bargaining, 128 U.Pa.L.Rev.
430, 457 (1979). Here, following the merger, the same inter-
national officers continued to govern and the members of
Local 1095 affected by the merger continued to be bound by
the same international constitution, and, even though the two
locals had their own bylaws, several of their bylaw provi-
sions were either identical or substantially identical. In addi-
tion, Local 1179’s bylaws were amended in certain signifi-
cant respects, as a condition of the merger, to accommodate
the specific needs of Local 1095’s membership. Local 1179’s
bylaws were amended to establish a semiautonomous Auto-
mobile Sales Division within Local 1179 for the former
members of Local 1095. The bylaws were also amended to
give the Automobile Sales Division of Local 1179 the iden-
tical trade and geographic jurisdiction as Local 1095’s and
to provide that the members of the Division would have es-
sentially the same dues and initiation fees and payment
schedule as under Local 1095. In addition, so that the Auto-
mobile Sales Division members’ interest would be sure to
have a voice among the officials of Local 1179, the bylaws
were amended to provide that one of Local 1179’s constitu-
tional officers, a vice president, would have to be from the
Automobile Sales Division. Lastly, in order to take into ac-
count the industry in which the members of the Automobile
Sales Division were employed, the section of Local 1179’s
bylaws dealing with the duties and obligations of its mem-
bers was amended to include certain work rules, described in
detail supra, which had been included in Local 1095’s by-
laws.
In determining there was a substantial degree of continuity
between the premerger Local 1095 and the postmerger Local
1179, it is also significant that after the merger Local 1095
did not surrender control over its representation and collec-
tive-bargaining functions. As described in detail supra, Local
1095’s members were taken into Local 1179 as a part of a
separate and semiautonomous division, the Automobile Sales
Division, and all of the important representation and collec-
tive-bargaining functions, formerly exercised by Local 1095
remained in the hands of Local 1179’s Automobile Sales Di-
vision, including the control of collective-bargaining contract
negotiations, day-to-day contract administration, the handling
of employees’ grievances, the ratification of contracts and the
calling of strikes. In this regard, the person who, on behalf
of Local 1095’s members, had negotiated collective-bar-
gaining contracts with covered employers, administered those
contracts, processed members’ grievances under those con-
tracts,14 and had the authority to have employee-members
strike in case contract negotiations reached impasse, was the
same person who performed those duties on behalf of Local
1179’s Automobile Sales Division. This person was Yates
Kendrick, Local 1095’s secretary-treasurer and president at
the time of the merger, who, as a condition of the merger
was appointed the director of Local 1179’s Automobile Sales
Division. See NLRB v. Insulfab Plastics, 789 F.2d 961, 966
(1st Cir. 1986), where the court quoting from St. Vincent
Hospital v. NLRB, 621 F.2d 1054, 1057 (10th Cir. 1980),
stated that ‘‘when the same persons participate in commu-
nications with the [employer] with respect to grievances,
contract negotiations, and the like, continuity is likely to be
preserved.’’ Here, the creation of the Automobile Sales Divi-
sion and Kendrick’s employment as the director of the Divi-
sion meant continuity in those areas most important to the
average employee and most likely to affect the employee-
members’ perception of the union as continuing unchanged.
This perception was reinforced by the fact that Local 1095’s
members in good standing were accepted as members of
Local 1179’s Automobile Sales Division with no new initi-
ation fee or requirements, and continued to pay essentially
the same monthly dues as they have paid as members of
Local 1095.
Further indicia of the substantial continuity between
premerger Local 1095 and postmerger Local 1179, are as fol-
lows: Local 1179’s Automobile Sales Division, as a condi-
tion of the merger, was given Local 1095’s trade and geo-
904 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
graphic jurisdiction; Local 1179’s Automobile Sales Division
conducted significant and substantial business at the former
office of Local 1095; Local 1179’s Automobile Sales Divi-
sion assumed all of the collective-bargaining contracts be-
tween Local 1095 and the covered employers; all of the em-
ployers, who, recognized Local 1095 as their employees’ col-
lective-bargaining representative, continued to recognize
Local 1179’s Automobile Sales Division as the employees’
representative; and, the former employee-members of Local
1095, as members of Local 1179’s Automobile Sales Divi-
sion, exercised the same authority after, as before the merger,
with respect to ratification of the collective-bargaining con-
tracts negotiated on their behalf by Kendrick and with re-
spect to whether or not to strike in support of their union’s
bargaining position.
I have considered that, other than Kendrick, none of the
former officials of Local 1095, have a role in governing
Local 1179. However, the presence of Kendrick, who, was
Local 1095’s principal official and employee at the time of
the merger, on Local 1179’s executive board and as one of
its vice presidents, insures that any distinctive interests of the
former Local 1095 members will be brought to the attention
of Local 1179’s officials and its executive board.
Nor, contrary to Respondent’s contention, is it significant
that Local 1095’s members are now members of a local
union that is substantially larger in size than Local 1095. For,
in Seattle-First, the Supreme Court recognized that the in-
creased size, financial support, and bargaining power that af-
filiations and mergers create are the ordinary, valid reasons
for such affiliations and mergers. 475 U.S. 198–199 fn. 5.
See also May Department Stores Co. v. NLRB, 897 F.2d at
fn. 9; NLRB v. Insulfab Plastics, 789 F.2d 961, 967–968 (1st
Cir. 1986).
I have also considered that Local 1095’s assets were trans-
ferred into Local 1179’s general fund and that no separate
account or budget is maintained by Local 1179 for its Auto-
mobile Sales Division and that the dues payments of the
members of the division are paid into Local 1179’s general
fund. There is no showing, however, that the Automobile
Sales Division of Local 1179 has less money, than Local
1095, to represent its members. Quite the opposite, Kendrick
testified that no money limits have been imposed upon the
Automobile Sales Division and that it has the full resources
of Local 1179 behind it in connection with its efforts to rep-
resent its employee-members.
In sum, although the merger brought changes, I find that
there was substantial continuity between premerger Local
1095 and postmerger Local 1179 because of the following
(see Montgomery Ward & Co., 188 NLRB 551 (1971)): the
former members of Local 1095 were taken into Local 1179
as a separate and semiautonomous division, the Automobile
Sales Division, which assumed Local 1095’s trade and geo-
graphic jurisdiction and all of the collective-bargaining con-
tracts between Local 1095 and the covered employers, and
continued to conduct significant and substantial business at
the former office of Local 1095; Yates Kendrick, Local
1095’s principal official and employee, became the principal
official and employee of Local 1179’s Automobile Sales Di-
vision; Kendrick’s postmerger authority to negotiate collec-
tive-bargaining contracts, to administer such contracts, to
process employees’ grievances under those contracts, to fash-
ion bargaining proposals, and to call strikes, and the
postmerger authority of Local 1095’s employee-members to
ratify collective-bargaining contracts and to strike, remained
identical to their premerger authority; the members of the
Automobile Sales Division of Local 1179 continued to be
governed by the same constitution as prior to the merger and
several sections of Local 1179’s bylaws are identical or sub-
stantially identical to Local 1095’s bylaws, and, as a condi-
tion of the merger, Local 1179’s bylaws were amended to
accommodate the specific needs of Local 1095’s members;
Local 1095’s members were accepted as members of Local
1179’s Automobile Sales Division with no new initiation fee
or requirements, and continued to pay essentially the same
monthly dues as they had paid while members of Local
1095; although Local 1095’s officials, other than Kendrick,
did not become officials of Local 1179, the presence of
Kendrick, Local 1095’s principal official and employee at the
time of the merger, on Local 1179’s executive board and as
one of its vice presidents and director of the Automobile
Sales Division, insured that any distinctive interest of the
former Local 1095 members would be brought to the atten-
tion of Local 1179’s officials; and, all of the employers who
recognized Local 1095 as their employees’ collective-bar-
gaining representative continued to recognize Local 1179’s
Automobile Sales Division as the employees’ representative.
In concluding that there was a substantial continuity be-
tween premerger Local 1095 and postmerger Local 1179 I
considered the changes relied upon by Respondent in its
posthearing brief, most of which have been evaluated pre-
viously in this section. Not previously evaluated is the fact
that the members of Local 1179’s Automobile Sales Division
did not hold membership meetings separate and apart from
the general membership meetings of Local 1179 and that the
members of the Automobile Sales Division do not vote sepa-
rately for delegates to the international union’s convention.
However, when all of the changes relied upon by Respondent
are balanced against the several factors set forth above which
indicate there was a continuity between the premerger Local
1095 and the postmerger Local 1179, I am persuaded it war-
rants the finding that the Automobile Sales Division of Local
1179 retained enough of the old character of Local 1095 so
as to render the changes relied on by Respondent insuffi-
ciently dramatic to raise a question concerning representa-
tion.
Western Commercial Transport, 288 NLRB 214 (1988),
relied on by Respondent, is inapposite. There, a small, com-
pletely autonomous independent union that represented 136
employees employed by a single employer was replaced by
an 8500-member organization, one of whose business agents
essentially assumed control of collective-bargaining and day-
to-day contract administration for the employees formerly
represented by the independent union. In contrast, here,
Local 1095 and Local 1179 were sister locals affiliated with
the same international organization and governed by the
same constitution and, following their merger, Local 1095’s
principal official, as was the case during his tenure with
Local 1095, continued to exercise sole control over the col-
lective-bargaining and day-to-day contract administration and
grievance handling on behalf of the employees formerly rep-
resented by Local 1095, and the employee-members retained
the power to ratify their collective-bargaining contracts and
decide whether to strike or not in support of their representa-
tive’s contract demands. Also unlike Western Commercial,
905TOYOTA OF BERKELEY
15 Respondent amended its answer to the consolidated complaint
during the hearing to allege, as an affirmative defense, that each of
the complaint’s unilateral change allegations were barred by the 6-
month limitations proviso to Sec. 10(b) of the Act. This defense
lacks merit. It is settled that the 6-month limitations proviso to Sec.
10(b) is tolled until the Charging Party has either actual or construc-
tive notice of the alleged unfair labor practice. Metromedia, Inc. v.
NLRB, 586 F.2d 1182, 1189 (8th Cir. 1978); Service Employees
Local 3036 (Linden Maintenance), 280 NLRB 995 (1986). The
Board has ruled that this ‘‘notice, whether actual or constructive,
must be clear and unequivocal, and that the burden of showing such
notice is on the party raising the affirmative defense of Section
10(b)’’ id. at 996. Accord: Christopher Street Corp., 286 NLRB 253
(1987). Here, there is no evidence that Local 1095, the Charging
Party, had clear and unequivocal notice, actual or constructive, of
any of the alleged illegal unilateral changes here, more than 6
months before it filed the applicable charges. Quite the opposite, the
record reveals Local 1095 learned of the alleged unilateral conduct
for the first time well within the 10(b) limitations period.
where none of the officials of the independent union became
officials of the new union, here, Local 1095’s principal offi-
cer became a vice president of Local 1179 and a member of
its executive board. See Montgomery Ward & Co., 188
NLRB 551 (1971).
Conclusions
Given that due-process safeguards in the merger vote were
observed and there exists a continuity of representative, I
find that the merger of Local 1095 into Local 1179 was valid
for purposes of the Act and raises no question concerning
representation.
Having found, supra, that Respondent was obligated to
recognize and bargain with Local 1095 as the exclusive bar-
gaining agent of its motor vehicle salespersons employed at
Toyota of Berkeley, pursuant to the Board’s October 17,
1988 certification in Cases 32–RD–552 and 32–RM–362, and
having found, supra, that on or about March 7, 1989 Re-
spondent refused to recognize and bargain with Local 1179
as the exclusive collective-bargaining representative of these
employees, and having found, supra, that the merger of Local
1095 into Local 1179 raises no question concerning represen-
tation, I find that the Respondent has violated Section 8(a)(5)
and (1) of the Act by refusing to recognize and bargain with
Local 1179 as the exclusive bargaining representative of its
motor vehicle salespersons employed at Toyota of Berkeley.
D. The Unilateral Changes in the Salespersons’ Terms
and Conditions of Employment
The motor vehicle salespersons employed by Respondent
at Toyota of Berkeley had been represented by Local 1095
since at least 1980 and in 1982 and 1983 were covered by
a collective-bargaining contract between Local 1095 and Re-
spondent, effective by its terms from October 1, 1982,
through May 31, 1983.
On December 13, 1983, one of the salespersons employed
at Toyota of Berkeley filed a petition with Board’s Regional
Director for Region 32, in Case 32–RD–552, questioning
Local 1095’s representative status and seeking a Board-con-
ducted secret-ballot election to determine whether or not the
salespersons still desired to be represented by Local 1095.
On that same day, December 13, Respondent withdrew rec-
ognition from Local 1095 as its salespersons’ exclusive col-
lective-bargaining representative. There is no contention or
evidence that its withdrawal of recognition violated the Act,
and, the General Counsel and Charging Party concede that
Respondent’s December 13, 1983 withdrawal of recognition
was permissible under the Act.
Subsequently, on December 19, 1983, Respondent filed a
petition with the Board’s Regional Director, in Case 32–RM–
362, questioning Local 1095’s status as the representative of
the salespersons employed at Toyota of Berkeley and asked
the Board to conduct a secret-ballot election to determine
whether those salespersons desired to be represented by that
union.
The Board’s Regional Director consolidated Cases 32–
RD–552 and 32–RM–362 and conducted a secret-ballot elec-
tion on February 22, 1984. The results of the election were
inconclusive because there were sufficient challenged ballots
to be determinative of the results of the election. Thereafter,
as described in detail supra, in 1988 the Board resolved those
challenged ballots and when they were opened and counted
in October 1988 the revised tally of ballots revealed that
Local 1095 had received a majority of the ballots cast. On
October 17, 1988, the Board’s Regional Director, on behalf
of the Board, issued a ‘‘Certification of Representative’’ in
Cases 32–RM–362 and 32–RD–552, certifying Local 1095 as
the exclusive bargaining agent of Respondent’s motor vehicle
salespersons employed at Toyota of Berkeley.
The consolidated complaint, as amended, alleges Respond-
ent violated Section 8(a)(5) and (1) of the Act by unilaterally
changing the terms and conditions of employment of its Toy-
ota of Berkeley salespersons, without affording Local 1095
an opportunity to bargain about such changes. The com-
plaint, as amended, enumerates several alleged unilateral
changes and alleges that one of them occurred during the
term of the parties’ 1982–1983 Agreement, that another oc-
curred after the expiration of the agreement but before Re-
spondent’s December 13, 1983 withdrawal of recognition,
and the remainder occurred during 1984 and 1985, following
the February 22, 1984 representation election.
Regarding the alleged unilateral changes which occurred in
1984 and 1985, counsel for the General Counsel contends
Respondent acted at its peril in making those changes during
the period the challenges and objections to the February 22,
1984 election were pending, and, in view of the fact that the
election ultimately resulted in the Board certifying Local
1095, these unilateral changes violated the Act. Counsel for
Respondent argues that Respondent was privileged to unilat-
erally change the salespersons’ terms and conditions of em-
ployment between the February 22, 1984 representation elec-
tion and the Board’s October 17, 1988 certification of Local
1095, because prior to the election, on December 13, 1983,
Respondent had lawfully withdrawn recognition from Local
1095. I am of the opinion that as a matter of law Respond-
ent, in the circumstances of this case, acted at its peril in
making unilateral changes in its salespersons’ terms and con-
ditions of employment during the period from February 22,
1984, the date of the representation election, and October 17,
1988, the date of the Board’s certification of Local 1095, and
that if Respondent in fact made the alleged unilateral changes
during that period, it violated Section 8(a)(5) and (1) of the
Act.15
‘‘It is well settled that, absent compelling economic con-
siderations, unilateral changes in terms or conditions of em-
906 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployment pending determination of objections and challenges
are made at an employer’s peril,’’ and that such changes or-
dinarily violate the Act if the union is ultimately certified.
San Antonio Portland Cement Co., 277 NLRB 338–338
(1985); see also Fugazy Continental Corp. v. NLRB, 725
F.2d 1416 (D.C. Cir. 1984). The reason for this rule is the
recognition that ‘‘[s]uch changes have the effect of bypass-
ing, undercutting, and undermining the union’s status as the
statutory representative of the employees in the event a cer-
tification is issued’’ and that ‘‘hold[ing] otherwise would
allow an employer to box the union in on future bargaining
positions by implementing changes of policy and practice
during the period when objections or determinative chal-
lenges to the election are pending.’’ Mike O’Connor Chev-
rolet, 209 NLRB 701, 703 (1974), enfd. denied on other
grounds 512 F.2d 684 (8th Cir. 1975).
Respondent does not contend that ‘‘compelling economic
considerations’’ required it to act unilaterally during the pe-
riod between the February 22, 1984 election and Local
1095’s October 17, 1988 certification, and presented no evi-
dence to support such a defense. Rather, Respondent con-
tends its December 13, 1983 good-faith doubt of Local
1095’s majority status, which allowed it to lawfully withdraw
recognition from Local 1095 on that date, excused the unilat-
eral conduct it is alleged to have engaged in between the
February 22, 1984 representation election and Local 1095’s
October 17, 1988 certification. I disagree. Respondent’s De-
cember 13, 1983 lawful withdrawal of recognition allowed it
to unilaterally change the employees’ terms and conditions of
employment between December 13, 1983, and February 22,
1984. However, the results of the February 22, 1984 rep-
resentation election were reasonably calculated to place Re-
spondent on notice that there was a good possibility that a
majority of its salespersons had voted for Local 1095 as their
exclusive bargaining representative and that after inves-
tigating the challenged ballots that the Board would deter-
mine this was the case and certify Local 1095 as the sales-
persons’ bargaining agent. In view of this, Local 1095’s sta-
tus as an incumbent union from whom Respondent had law-
fully withdrawn its recognition several weeks before the rep-
resentation election, does not undercut the reasons for the ap-
plication in this case of the Board’s usual rule, that absent
compelling economic circumstances, unilateral changes in
terms and conditions of employment pending determination
of objections and challenges are made at an employer’s peril,
where the union is ultimately certified.
George Braun Packing Co., 210 NLRB 1028 (1974); At-
wood & Morrill Co., 289 NLRB 794 (1988); and Ellex
Transportation, 217 NLRB 750 (1975), cited by Respondent,
do not support its contention that an employer’s lawful with-
drawal of recognition from a union, before or during the
pendency of a question concerning representation, allows the
employer to unilaterally change the voting unit employees’
terms and conditions of employment between the date of a
Board-conducted representation election and the union’s cer-
tification by the Board as the employees’ bargaining rep-
resentative. In George Braun the Board majority dismissed
the complaint, which alleged that the employer violated Sec-
tion 8(a)(5) because of its withdrawal of recognition from an
incumbent union, because the evidence was sufficient to
meet the standards established in U.S. Gypsum Co., 157
NLRB 652 (1966), with respect to the processing of em-
ployer-filed representation petitions. Atwood & Morrill holds
that where an otherwise lawful withdrawal of recognition oc-
curs during the pendency of a question concerning represen-
tation raised by the filing of a decertification petition or a
petition filed by a rival union, that the pendency of the ques-
tion concerning representation would not preclude the with-
drawal of recognition. In neither of these cases did the Board
indicate, expressly or by implication, that between the date
of a Board-conducted representation election and a union’s
certification by the Board as the result of that election, em-
ployers could unilaterally change their employees’ terms and
conditions of employment without offering the union an op-
portunity to bargain about those changes.
In Ellex Transportation the employer’s employees rep-
resented by the Teamsters were covered, pursuant to a col-
lective-bargaining agreement, under that labor organization’s
health and welfare fund and pension fund. Prior to the expi-
ration of the contract a deauthorization petition was filed
with the Board, and negotiations were suspended pending
outcome of the deauthorization proceeding and subsequent
decertification petition, which was filed with the Board after
the contract expired. The Teamsters union ultimately pre-
vailed in the decertification election and was certified by the
Board. Previously, on the date the collective-bargaining con-
tract expired, the employer ceased contributing to the health
and welfare and pension funds, and, at some date thereafter,
made available and implemented its own health, welfare and
pension plan to the unit employees and did this unilaterally
without notifying or bargaining with the Teamsters union.
The complaint alleged that the employer violated Section
8(a)(5) by unilaterally instituting and implementing its own
pension and health and welfare program for the unit employ-
ees. The administrative law judge, found, and a majority of
the Board panel agreed that, the employer’s alleged illegal
unilateral conduct did not violate the Act, because the record
revealed that the union had acquiesced in that conduct. In the
instant case, there is no contention or evidence that Local
1095 acquiesced in any of Respondent’s alleged unilateral
changes in the employees’ terms and conditions of employ-
ment.
It is for the above reasons that I find if, as alleged in the
amended complaint, in 1984 and 1985, subsequent to the
February 22, 1984 representation election, Respondent unilat-
erally changed the terms and conditions of employment of its
motor vehicle salespersons employed at Toyota of Berkeley,
that by engaging in this unilateral conduct Respondent vio-
lated Section 8(a)(5) and (1) of the Act. I shall now set forth
and evaluate the evidence pertinent to these allegations, as
well as the evidence pertinent to the allegations charging Re-
spondent with acting unilaterally in 1982 during the term of
its contract with Local 1095 and during 1983 prior to its De-
cember 13, 1983 withdrawal of recognition from Local 1095.
Respondent requires its salespersons to reimburse it for
the damage to company-owned vehicles they drive
Since at least early in 1982 until late-January 1985 Re-
spondent’s salespersons employed at Toyota of Berkeley
rented their demonstrator motor vehicles from Respondent.
Pursuant to the terms of their rental agreements with Re-
spondent, the salespersons each paid a monthly rental of $50
for the demonstrators and also agreed to pay an additional
$20 a month which would be accrued by Respondent in a
907TOYOTA OF BERKELEY
16 Respondent’s unlawful unilateral conduct of requiring the sales-
persons to pay $20 a month into an insurance fund was not specifi-
cally alleged as an unfair labor practice. I am persuaded that my
finding concerning the illegality of that requirement does not violate
principles of due process, because the record reveals that the matter
was closely related to other complaint allegations and was fully and
fairly litigated.
17 Other than its conclusionary statement that ‘‘1095 either knew
of the practice or certainly should have known of it,’’ Respondent
points to no evidence in support of this assertion, and there is none.
collision insurance account. They further agreed, that during
a 12-month period, that the first $500 in damages to their
rental car would be paid out of this collision insurance ac-
crual account and that the second $500 in damages incurred
during the same 12-month period would be personally paid
to Respondent by the responsible salesperson. At the end of
the year, all of the money left in the above-described colli-
sion insurance accrual account was returned by Respondent
to the salespersons in the form of a good driver bonus.
As indicated supra, on September 23, 1982, Respondent
entered into a collective-bargaining agreement with Local
1095 covering the salespersons. It was effective from Octo-
ber 1, 1982, through May 31, 1983. Section 8 of the agree-
ment provided that Respondent could make available a dem-
onstrator automobile to each of its new car salespersons by,
among other ways, renting them a current model at a month-
ly rental of $50, and further provided that no additional
charges would be required from salespersons renting dem-
onstrators other than the $50 monthly rental fee, and further
provided
if such a vehicle is damaged and repaired under a colli-
sion insurance policy maintained by the Employer, the
salesman responsible for such damage may be charged
up to a maximum of $250 under any deductible colli-
sion provision in such insurance policy.
Despite the above-described section 8 of the 1982–1983
agreement, following the execution of the agreement and
throughout the term of the agreement and until late January
1985, when Respondent discontinued renting demonstrator
motor vehicles to its salespersons, Respondent continued to
have the salespersons sign the above-described rental agree-
ment, whereby they agreed to contribute $20 a month into
a collision insurance accrual account and agreed that the first
$500 in damages to their rented demonstrator would be paid
out of that account and that they would be personally liable
to Respondent for the second $500 in damages during each
12-month period.
Respondent did not notify Local 1095 that it intended to
maintain its existing insurance policy with respect to the
salespersons’ rented demonstrators, which differed substan-
tially from its contractual obligation. Nor is there evidence
that Local 1095 knew or should have known of Respondent’s
policy of holding its salespersons liable for more than the
$250 of insurance costs set by the governing collective-bar-
gaining agreement, or its policy of requiring the salespersons
to pay $20 a month into an insurance fund.
Late in January 1985, when Respondent discontinued its
policy of renting demonstrator automobiles to its sales-
persons, it required all of its salespersons employed at Toy-
ota of Berkeley to agree in writing to authorize Respondent
to deduct from their wages ‘‘any damages up to $500 per oc-
currence, incurred while driving any company-owned vehi-
cle.’’ Respondent did not notify Local 1095 about this re-
quirement, which was a new requirement.
The consolidated complaint, as finally amended (Tr. pp.
570–571), alleges in substance that since the effective date
of its contract with Local 1095, October 1, 1982, Respondent
has unilaterally changed its salespersons’ terms and condi-
tions of employment so they differed from the contractual
provision which limited the salespersons’ insurance liability
to $250 for damaging the demonstrators they rented from Re-
spondent. As I have found supra it is undisputed that on Oc-
tober 1, 1982, the date on which its collective-bargaining
agreement with Local 1095 went into effect, Respondent,
unilaterally and without notice to Local 1095, violated the
section of the agreement which dealt with the salespersons’
liability for damaging the demonstrator motor vehicles they
rented from Respondent. Respondent violated the agreement
by continuing to maintain its policy of requiring salespersons
to pay more to Respondent for damaging the demonstrators
they rented, than the $250 limit provided by the agreement,
and by requiring the salespersons to pay $20 a month into
an insurance fund, in violation of the parties’ agreement pro-
hibiting any charges other than the $50 monthly rental fee.
I find that by engaging in this unilateral conduct, in deroga-
tion of the terms of the collective-bargaining agreement with
Local 1095, Respondent violated Section 8(a)(5) and (1) of
the Act.16
Respondent contends that it did not violate the Act by en-
gaging in the above-described unilateral conduct because: (1)
no salespersons were ever required to pay Respondent $500
for damaging a motor vehicle, inasmuch as no one ever had
two accidents within the same 12-month period; (2) the pol-
icy requiring employees to pay more than $250 for damaging
their rented demonstrator and to pay $20 a month into an in-
surance fund, which policy was maintained by Respondent
after the effective date of its collective-bargaining agreement
with Local 1095, was a continuation of the policy it had
maintained prior to that date, thus it cannot be claimed that
it constitutes a change in the employees’ terms and condi-
tions of employment; and (3) this violation is barred by the
6-month limitations proviso to Section 10(b) of the Act be-
cause Local 1095 either knew of Respondent’s longstanding
policy or should have known of it.17 These contentions lack
merit because: (1) although no salesperson had two accidents
within the same 12-month period, so as to put that aspect of
Respondent’s policy to the test, it does not detract from the
undisputed fact that during the time material Respondent
maintained the policy and presumably would have enforced
it if a situation arose warranting its enforcement; (2) that Re-
spondent continued to maintain in effect its existing policy,
following the execution of its collective-bargaining agree-
ment, is no defense to the charge that by maintaining this
policy in derogation of its agreement with Local 1095 that
it violated the Act, where, as here, there is no showing that
Local 1095 knew this was the case or otherwise acquiesced
in Respondent’s unilateral conduct; and (3) Respondent’s
10(b) defense is without merit because, as I have found
supra, there is no evidence Local 1095 knew or should have
known of this violation more than 6 months prior to the fil-
ing of its May 25, 1984 charge in Case 32–CA–6505 alleg-
ing that, in violation of Section 8(a)(5) and (1) of the Act,
908 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 This violation was not alleged in the consolidated complaint, as
amended, as an unfair labor practice. However, I am persuaded by
that my finding of a violation does not violate principles of due
process because the record reveals that the matter was closely related
to other complaint allegations and was fully and fairly litigated.
Respondent failed to bargain in good faith with Local 1095
‘‘by unilaterally changing terms and conditions of employ-
ment.’’
I further find, as contended by counsel for the General
Counsel, that Respondent also violated Section 8(a)(5) and
(1) of the Act, when in late January 1985, at the same time
it discontinued renting demonstrator motor vehicles to its
salespersons, it unilaterally, without affording Local 1095 an
opportunity to bargain about the matter, instituted a policy
requiring salespersons to pay Respondent for any damages,
up to $500 per occurrence, incurred to company-owned vehi-
cles they were driving.18
In defending against this violation Respondent argues that
when in late January 1985 it had its salespersons sign agree-
ments authorizing Respondent to deduct from their wages
‘‘any damages up to $500 per occurrence, incurred while
driving any company-owned vehicle,’’ it was simply con-
tinuing its longstanding policy, in existence since at least
1982, of requiring its salespersons to reimburse Respondent
for any damages, up to $500, incurred while driving any
company-owned vehicle.
In support of this argument, Respondent relies upon the
testimony of Mark Pagan, its former general sales manager.
He testified Respondent’s longstanding policy of requiring
salespersons, who rented demonstrators from Respondent, to
reimburse Respondent for up to $500 for damages incurred
to their rented demonstrators, was not limited to only dam-
ages to a rented demonstrator, but covered damage incurred
to any motor vehicle owned by Respondent being driven by
a salesperson. I reject his testimony. It was contrary to the
express terms of the agreements signed by the salespersons.
These agreements (R. Exhs. 8–10) by their express terms ob-
ligated the salespersons to reimburse Respondent for damage
done only to the specific demonstrator motor vehicles they
were renting from Respondent, or a substitute rental vehicle.
Respondent offered no evidence that in practice it applied the
terms of those agreements to motor vehicles other than the
demonstrators which were being rented to the salespersons,
or evidence that Respondent otherwise had a policy, prior to
January 1985, of requiring its salespersons to reimburse Re-
spondent for up to $500 for damages incurred to any com-
pany-owned motor vehicle they were driving. Quite the op-
posite, the fact Respondent felt it was necessary to have its
salespersons, in early 1985, agree in writing that they were
obligated to reimburse Respondent for up to $500 for dam-
ages to any company motor vehicle they were driving, war-
rants the inference that prior to that time no such policy had
been in effect, but that employees up until that time were
only required to reimburse Respondent for the damage to the
demonstrator motor vehicles they had been renting from Re-
spondent. It is for all of these reasons that I reject Pagan’s
testimony.
Respondent requires its salespersons to attend sales
meetings on their scheduled days off
Section ‘‘5-4’’ of Respondent’s 1982–1983 Agreement
with Local 1095 provided, in pertinent part, that ‘‘each em-
ployee shall be permitted to take off one full day during each
work week, Monday through Saturday,’’ and section ‘‘5-5’’
of the agreement further provided, in pertinent part, that
‘‘when an employee receives a day off pursuant to the provi-
sions of this Agreement, the Employer shall not require the
employee to perform any services whatsoever, including at-
tendance at a sales meeting.’’ The 1982–1983 Agreement
was in effect from October 1, 1982, through May 31, 1983.
Keith Allen, a salesperson employed by Respondent from
October 1983 until April 1984, testified for the General
Counsel that during his entire period of employment that
sales meetings were held each Saturday at 8 a.m. and attend-
ance by the salespersons was mandatory, even for those
salespersons scheduled to be off from work on Saturday. In
this respect, he further testified that if salespersons scheduled
to be off from work on Saturday failed to attend a weekly
sales meeting, that he or she faced possible termination pur-
suant to Respondent’s policy. Allen was not cross-examined
about this testimony.
Mark Pagan, Respondent’s general sales manager during
the time material to this case, testified for the Respondent
that it was not his policy while general sales manager to re-
quire salespersons to attend sales meetings on their days off
and further testified that the only times salespersons would
be asked to come to work on their scheduled days off was
if there was a special event sale scheduled for that day.
Allen’s testimonial demeanor, which was good, was better
than Pagan’s. Accordingly, I find that during Allen’s tenure
of employment with Respondent, October 1983 to April
1984, Respondent maintained a policy pursuant to which
salespersons were required to come to Respondent’s premises
on their scheduled days off to attend sales meetings. The
record also establishes Respondent never notified Local 1095
about this policy or otherwise afforded it an opportunity to
bargain about the policy.
The complaint, as amended, alleges that ‘‘commencing on
or about November 1983, Respondent implemented a new
policy requiring attendance at weekly sales meetings on em-
ployees’ days off,’’ and further alleges this policy was insti-
tuted without notice to Local 1095 and without affording that
union an opportunity to bargain, thereby violating Section
8(a)(5) and (1) of the Act. I find this allegation has merit for
the reasons below.
As I have found supra, as of May 31, 1983, the expiration
date of Respondent’s collective-bargaining agreement with
Local 1095, Respondent was prohibited by the terms of the
agreement from requiring its salespersons to attend sales
meetings on their scheduled days off, and presumably com-
plied with the terms of that agreement during its term. I also
find that in compliance with settled law, Respondent, follow-
ing the expiration of that agreement, was legally obligated to
continue to maintain the existing conditions of employment
established by the agreement, including its prohibition
against requiring salespersons to attend sales meetings on
909TOYOTA OF BERKELEY
19 The law is settled that for purposes of Sec. 8(a)(5) of the Act,
the terms of a collective-bargaining agreement survive its expiration
date for purposes of marking the status quo as to wages and terms
and conditions of employment and that the employer must continue
that status quo at least until the parties negotiate a new agreement
or bargain in good faith to an impasse. NLRB v. Carilli, 648 F.2d
1206, 1214 (9th Cir. 1981). There is no contention or evidence that
any of the alleged illegal unilateral changes which are in question
in this case were privileged by an impasse in the parties’ bargaining. 20 See NLRB v. Carilli, 648 F.2d 1206, 1214 (9th Cir. 1981).
their scheduled days off.19 However, as I have found supra,
by at least October 1983 Respondent had unilaterally, with-
out affording Local 1095 an opportunity to bargain about the
matter, replaced its prior policy of not requiring salespersons
to attend sales meetings on their scheduled days off, with a
new policy of requiring salespersons to attend sales meetings
on their scheduled days off. I find that by engaging in this
unilateral conduct Respondent violated Section 8(a)(5) and
(1) of the Act.
Respondent requires its salespersons to work Sunday
Section ‘‘5-9.3’’ of Respondent’s 1982–1983 agreement
with Local 1095 provided, in pertinent part, that ‘‘Sunday
work should not be required of any salesman,’’ and section
‘‘5-9.4’’ of the Agreement, in pertinent part, provided that
‘‘Sunday work shall be voluntary . . . (Voluntary, as used
herein shall be defined as without intimidation or coercion.)’’
The 1982–1983 Agreement was, by its terms, effective from
October 1, 1982, through May 31, 1983.
Keith Allen, a salesperson employed by Respondent from
October 1983 until April 1984, testified for the General
Counsel that during his entire period of employment he was
‘‘required’’ to work Sundays. He was not cross-examined
concerning this testimony.
Wade Ellery, a salesperson employed by Respondent from
March 1984 to April 1985, testified for the General Counsel
that during his employment from March 1984 until approxi-
mately February 1985, as a general rule, he was ‘‘required’’
to work every other Sunday and that beginning in approxi-
mately February 1985 a new work schedule was instituted,
whereby the salespersons were required to work three Sun-
days in a row. Ellery further testified that it was his under-
standing that Sunday work was not voluntary. He was not
cross-examined concerning his testimony.
Mark Pagan, Respondent’s former general sales manager,
testified for Respondent that during his tenure as general
sales manager, 1982–1987, he did not have a policy of ‘‘re-
quiring’’ salespersons to work Sunday, but that salespersons
were asked if they wanted to work Sunday, which was a
popular workday. He further testified that he was not able to
remember any salesperson ever being disciplined for refusing
to work Sunday or complaining about having to work Sun-
day.
Allen’s testimonial demeanor, which was good, was better
than Pagan’s, and Allen’s testimony that he was ‘‘required’’
to work Sunday was corroborated by Ellery’s above-de-
scribed testimony. I therefore find that during Allen’s and
Ellery’s employment, October 1983 to March 1985, Re-
spondent required its salespersons to work Sunday. The
record also establishes Respondent never notified Local 1095
about this policy or otherwise afforded it the opportunity to
bargain about the matter.
The complaint, as amended, alleges that ‘‘commencing on
or about November 1983, Respondent implemented a policy
requiring employees to work on Sundays’’ and further al-
leges this policy was instituted without notice to Local 1095
and without affording Local 1095 an opportunity to bargain
about the matter, thereby violating Section 8(a)(5) and (1) of
the Act. The allegation has merit.
As I have found supra, as of May 31, 1983, the expiration
date of the Respondent’s collective-bargaining agreement
with Local 1095, Respondent was prohibited by the provi-
sions of that agreement from requiring its salespersons to
work on Sunday, and presumably complied with the terms of
the agreement during its term. I also find, that in compliance
with settled law, following the expiration of its agreement
with Local 1095, Respondent was legally obligated to con-
tinue to maintain the existing conditions of employment es-
tablished by the agreement, including its prohibition against
requiring salespersons to work Sunday.20 However, as I have
found supra, by at least October 1983 Respondent had unilat-
erally, without affording Local 1095 an opportunity to bar-
gain about the matter, replaced its policy of not requiring its
salespersons to work Sunday, with a new policy requiring
salespersons to work Sunday. I find that by engaging in this
unilateral conduct Respondent violated Section 8(a)(5) and
(1) of the Act.
Respondent exceeds the ratio of ‘‘Beginner’’ to
‘‘Regular’’ salespersons
The 1982–1983 Agreement classified Respondent’s sales-
persons as either ‘‘beginner’’ or ‘‘regular’’ salespersons. It
defined ‘‘regular’’ salespersons as all salespersons other than
‘‘beginner’’ salespersons, and defined a ‘‘beginner’’ sales-
person as ‘‘an automobile salesman who has less than six
months experience in the selling or leasing of motor vehi-
cles.’’ The agreement also provided that during their first 18
months of employment, ‘‘beginner’’ salespersons could be
paid less than ‘‘regular’’ salespersons, as set forth in the
agreement. Lastly, section ‘‘7-1.5’’ of the agreement pro-
vided: ‘‘The employment of beginner salesmen shall be lim-
ited as follows: Where one regular salesman is employed,
one beginner salesman may be employed; for each 4 addi-
tional regular salesmen, one additional beginner salesman
may be hired.’’
The complaint, as amended, alleges that ‘‘commencing in
or about August 1984, Respondent exceeded the ratio of new
to experienced sales people, as provided in the Agreement,’’
and further alleges Respondent engaged in this conduct with-
out notice to Local 1095 and without affording that union an
opportunity to bargain about the matter, thereby violating
Section 8(a)(5) and (1) of the Act. This allegation lacks merit
because there is insufficient evidence to establish that com-
mencing in or about August 1984 Respondent exceeded the
ratio of ‘‘beginner’’ to ‘‘regular’’ salespersons, as provided
in the 1982–1983 agreement, and, even if there was such evi-
dence, there is a lack of evidence that this conduct con-
stituted a unilateral change in the salespersons’ terms and
conditions of employment. I therefore, for these reasons,
shall recommend the dismissal of this allegation.
In support of this alleged unfair labor practice, counsel for
the General Counsel relies on Wade Ellery’s testimony.
910 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Ellery, a ‘‘beginner’’ salesperson, testified for the General
Counsel that during the period of August and September
1984 Respondent employed 9 or 10 salespersons at Toyota
of Berkeley, and then when asked by counsel how many of
those salespersons had no experience previously selling cars,
testified ‘‘probably 5.’’ It is based on this testimony that
counsel for the General Counsel argues, as alleged in the
amended complaint, Respondent commencing in August
1984 exceeded the ratio of ‘‘beginner’’ to ‘‘regular’’ sales-
persons required by the 1982–1983 agreement. However, this
is not necessarily so because the fact that a salesperson when
initially hired may have had no prior automobile selling ex-
perience does not necessarily mean that by the time in ques-
tion, August and September 1984, they had not been reclassi-
fied as ‘‘regular’’ salespersons because of superior selling
performance. In any event, Ellery, a rank-and-file employee,
would ordinarily not be competent to testify about the prior
motor vehicles selling experience of his fellow employees,
and counsel for the General Counsel made no effort to show
that his testimony was based on reliable sources, i.e., com-
pany records or admissions of supervisors. Moreover,
Ellery’s testimony concerning the status of David Forrestall
shows that it would be foolish to rely upon his testimony to
determine whether salespersons were classified as ‘‘begin-
ner’’ or ‘‘regular’’ salespersons. Ellery testified that based on
his conversations with David Forrestall about Forrestall’s
prior experience selling motor vehicles, that Ellery had con-
cluded Forrestall had been hired by Respondent as a ‘‘reg-
ular’’ rather than as a ‘‘beginner’’ salesperson. However, it
is undisputed that Forrestall was hired by Respondent as a
‘‘beginner,’’ not as a ‘‘regular,’’ salesperson. It is for the
foregoing reasons that Ellery’s above-described testimony is
unreliable insofar as the General Counsel has relied upon it
to determine whether salespersons were ‘‘beginner’’ or ‘‘reg-
ular’’ salespersons, and because of this there is insufficient
evidence to show, as contended by the General Counsel, that
during the period from August to September 1984, 50 per-
cent of Respondent’s salespersons were ‘‘beginner’’ sales-
persons.
Even assuming, as alleged in the complaint, that com-
mencing in or about August 1984, Respondent exceeded the
ratio of ‘‘beginner’’ to ‘‘regular’’ salespersons, as provided
for in the 1982–1983 agreement, there is no showing this
conduct constituted a unilateral change in the employees’
terms and conditions of employment. For, as the result of its
lawful withdrawal of recognition from Local 1095 on De-
cember 13, 1983, Respondent at that time was privileged to
unilaterally change its salespersons’ terms and conditions of
employment, and to continue to act unilaterally until the Feb-
ruary 22, 1984 representation election. In view of this, there
is no presumption that following its December 13, 1983
withdrawal of recognition that Respondent continued to
maintain the status quo with respect to the salespersons’
terms and conditions of employment in order to stay in com-
pliance with the law. I realize that under certain cir-
cumstances once a state of affairs has been shown to exist,
it is presumed that this state of affairs continues to exist.
Thus, when a collective-bargaining agreement expires, it is
reasonable to presume that the signatory employer will con-
tinue to maintain the terms and conditions of employment
embodied in that agreement, because if the employer unilat-
erally changes those terms and conditions of employment he
will have violated the Act. But, where, as here, an employer
lawfully withdraws recognition from a union subsequent to
the expiration of the parties’ collective-bargaining agreement,
the employer is legally free to unilaterally change his em-
ployees’ existing terms and conditions of employment and
because of this there is no good reason to presume that the
employer will continue to abide by the terms of that agree-
ment. It is for this reason that it was the General Counsel’s
burden in the instant case to demonstrate that during the pe-
riod from December 13, 1983, to August 1984 that Respond-
ent continued to maintain the terms and conditions of em-
ployment embodied in 1982–1983 Agreement. In other
words, in connection with the instant allegation, the General
Counsel needed to show that Respondent, during the period
immediately prior to August 1984, still continued to apply
the provisions of the 1982–1983 Agreement which classified
persons as ‘‘beginner’’ and ‘‘regular’’ salespersons and
which obligated Respondent to hire only so many ‘‘begin-
ner’’ salespersons for every ‘‘regular’’ salesperson in its em-
ploy. There is insufficient evidence to establish this. There-
fore, even if the General Counsel has proven that com-
mencing in or about August 1984 Respondent exceeded the
ratio of ‘‘beginner’’ to ‘‘regular’’ salespersons, as provided
for in the 1982–1983 Agreement, such conduct would not es-
tablish Respondent had changed an existing term and condi-
tion of employment.
Respondent requires its salespersons to perform
nonunit work
The complaint alleges that ‘‘commencing on or about
March 1984, Respondent has required that unit employees
perform nonunit work, such as processing automobile repos-
sessions’’ and further alleges Respondent engaged in this
conduct without notice to Local 1095 and without affording
that union an opportunity to bargain about the matter, there-
by violating Section 8(a)(5) and (1) of the Act. In support
of this allegation counsel for the General Counsel relies upon
the following evidence.
Section 11 of the parties’ 1982–1983 Agreement effective
from October 1, 1982, through May 31, 1983, reads:
No salesman shall be expected or required to act as a
collector, except in relation to deposits or down pay-
ments connected with his own sales, or carry on any
other work not connected with the sale, delivery, and
proper customer service with the sale and delivery of
motor vehicles, accessories, etc.
Wade Ellery, employed as a salesperson at Toyota of
Berkeley from March 1984 until the end of April 1985, testi-
fied that during his employment the salespersons were re-
quired to perform duties other than selling motor vehicles to
customers, as follows: Required to go to the Respondent’s
body shop to drive new cars to the sales floor, which were
in the body shop being prepared for sale; required to trans-
port cars for other motor vehicle dealerships owned and op-
erated by Respondent; and, required to handle certain paper-
work connected with the financing of the sales transactions
they were handling, namely, paperwork associated with the
verification of customers’ incomes and the cashing of bank
drafts.
911TOYOTA OF BERKELEY
Ellery further testified that in late 1984 or early 1985 Re-
spondent established a ‘‘hot sheet’’ program, the purpose of
which was to enable its sales manager to keep track of all
pending sales transactions so as to make sure that all of the
steps necessary to complete those transactions were being
handled in a timely fashion. If certain steps necessary to the
sale had not been performed as scheduled, then the sales-
person responsible for the sale was instructed by the sales
manager to remedy the matter. In this regard, Ellery testified
the salespersons were expected to do the following: ask cus-
tomers to submit a payroll check stub so Respondent could
verify their income; ask customers to furnish a pink slip
showing title to his or her trade-in, or if a pink slip was un-
available have the customers fill out the appropriate paper-
work and send it to the department of motor vehicles; and,
to handle anything outstanding on the financing part of the
transaction, such as in one instance Ellery ended up cashing
one of his customer’s checks to complete the sale.
Mark Pagan, Respondent’s general sales manager during
the time material, testified that under the ‘‘hot sheet’’ pro-
gram salespersons telephoned their customers to have them
furnish necessary documentation needed by the dealership to
verify the customers’ incomes; telephoned their customers to
have them furnish ‘‘pink slips’’ they had failed to give the
dealership for the cars they were trading in; and, in certain
situation, when their customers failed to furnish certain in-
come documentation as promised, the salespersons tele-
phoned the customers to get this information. Pagan also tes-
tified that during the normal course of business salespersons
went with their customers to the bank to cash certain types
of checks being used by customers to buy cars.
The instant allegation, that commencing on or about
March 1984 Respondent unilaterally changed the sales-
persons’ terms and conditions of employment by requiring
them to do nonbargaining unit work, is without merit be-
cause even assuming Respondent required its salespersons to
perform nonbargaining unit work, as alleged, there is no evi-
dence that by engaging in this conduct Respondent changed
its salespersons’ existing terms and conditions of employ-
ment. The General Counsel’s contention that Respondent
changed its salespersons’ terms and conditions of employ-
ment is based on the presumption that following Respond-
ent’s December 1983 withdrawal of recognition from Local
1095 that Respondent continued to abide by section 11 of the
parties’ 1982–1983 Agreement. As I have found supra, this
presumption is unreasonable. Rather, absent evidence to the
contrary, it is just as reasonable to infer that subsequent to
its withdrawal of recognition, Respondent no longer contin-
ued to abide by section 11 of the expired 1982–1983 Agree-
ment. Here the record contains no evidence that following its
withdrawal of recognition from Local 1095, Respondent con-
tinued to maintain as its policy what was formerly embodied
in section 11 of the 1982–1983 Agreement. In any event,
even if it was reasonable for the General Counsel to presume
that following the December 13, 1983 withdrawal of recogni-
tion, that Respondent continued to abide by section 11 of the
1982–1983 Agreement, the evidence fails to show that com-
mencing on or about March 1984, as alleged in the com-
plaint, Respondent required its salespersons to perform non-
bargaining unit work as defined by section 11 of the 1982–
1983 Agreement. No evidence was presented to show how
the parties in fact applied section 11 of the 1982–1983
Agreement and in view of that section’s obvious ambiguity,
I am unable to determine whether the evidence relied on by
the General Counsel, set forth above, is sufficient to warrant
the conclusion that Respondent during the time material re-
quired its salespersons to perform nonunit work as defined
in section 11 of the 1982–1983 Agreement.
It is for the foregoing reasons that I shall recommend the
dismissal of this allegation.
Respondent requires its salespersons to work the day
before and the day after holidays
The complaint alleges that ‘‘commencing on or about No-
vember 1984, Respondent discontinued accommodating the
schedules of Unit employees’ days off during holidays, as
provided in the Agreement,’’ and further alleges Respondent
engaged in this conduct without notice to Local 1095 and
without affording that union an opportunity to bargain about
the matter, thereby violating Section 8(a)(5) and (1) of the
Act. In support of this allegation, counsel for the General
Counsel relies upon the following evidence.
Section ‘‘5-3.1’’ of the 1982–1983 Agreement, effective
from October 1, 1982, through May 31, 1983, reads:
The day BEFORE Thanksgiving Day and the day
AFTER Thanksgiving Day shall be considered Holidays
whereby one-half (1/2) of the sales crew will work one
of the above days and the opposite half will work the
other day. This formula will also apply to the day BE-
FORE Christmas Day and the day BEFORE New Years
Day.
The record shows that during the weeks of Thanksgiving
and Christmas in 1984 Respondent followed its normal
schedule and pursuant to that schedule all of its salespersons
worked the day before and after Thanksgiving and Christmas
Day. The record also shows that during the week of Christ-
mas in 1985 substantially more than one-half of the sales-
persons were scheduled to work the day before Christmas
Day.
The General Counsel’s contention that commencing on or
about November 1984 Respondent unilaterally changed its
salespersons’ terms and conditions of employment by dis-
continuing giving them the day off before and after holidays,
as provided in the 1982–1983 Agreement, is without merit
because there is no evidence that by engaging in this conduct
Respondent changed its salespersons’ existing terms and con-
ditions of employment. The General Counsel’s contention
that Respondent engaged in illegal unilateral conduct by hav-
ing virtually all of its salespersons work their regular work
schedule the day before and after Thanksgiving Day in 1984
and the day before Christmas Day in 1984 and 1985, is
based on the presumption that Respondent continued to abide
by section 5-3.1 of the expired 1982–1983 Agreement even
after Respondent’s December 13, 1983 lawful withdrawal of
recognition from Local 1095. However, for the reasons set
forth previously in this decision, this presumption is unrea-
sonable and, absent evidence to the contrary, it is just as rea-
sonable to infer that subsequent to its withdrawal of recogni-
tion Respondent no longer continued to abide by section 5-
3.1 of the expired 1982–1983 Agreement. Here the record
contains no evidence that subsequent to its withdrawal of
recognition, Respondent continued to maintain as its policy
the terms and conditions of section 5-3.1 of the parties’
912 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 This testimony was uncontradicted. Ellery’s testimonial de-
meanor was good when he gave it. I therefore credit his testimony.
22 The fact that beginner salesperson Allen, employed by Respond-
ent for a period of 5 months in 1983–1984, did not recall this policy,
does not detract from Pagan’s testimony.
1982–1983 Agreement. I therefore shall recommend the dis-
missal of this allegation.
Respondent prohibits its salespersons from
shopping trade-ins
The complaint alleges that ‘‘commencing on or about Jan-
uary 1985, Respondent prohibited Unit employees from
shopping trade-ins, as provided in the Agreement,’’ and fur-
ther alleges Respondent engaged in this conduct without no-
tice to Local 1095 and without affording the union an oppor-
tunity to bargain about the matter, thereby violating Section
8(a)(5) and (1) of the Act. All of the evidence pertinent to
this allegation follows.
Section ‘‘6-2’’ of Respondent’s 1982–1983 Agreement
with Local 1095, entitled ‘‘Shopping of Trades,’’ reads:
(6-2.1) Before a transaction is accepted by the Em-
ployer: A salesman shall have the right to shop any
trade-in wherein he does not agree with the Employer’s
appraisal, without prejudice, by obtaining a bona fide
wholesale cash bid from a state licensed automobile
dealer on the trade-in. In the event the salesman does
obtain a bona fide cash bid of at least $100 higher than
the Employer’s appraisal thereof, the Employer shall
have the right to accept the higher wholesale cash bid
at the time it is presented by the salesman, by cor-
recting his own appraisal accordingly. . . . .
(6-2.2) After a transaction is accepted by the Em-
ployer: The salesman shall notify the Employer prompt-
ly of his intention to shop the vehicle, and his option
to shop said vehicle shall expire after 48 hours. . . . In
the event the salesman does obtain a bona fide cash
wholesale bid $100 or more higher than the Employer’s
appraisal thereof, then the salesman shall have the right
to sell the motor vehicle for the amount of the higher
cash bid and his commission shall be adjusted accord-
ingly.
Wade Ellery, employed as a salesperson by Respondent
from March 1984 to the end of April 1985, testified that at
sales meetings held in January 1985, Respondent’s sales
manager’ Michael Levy ‘‘explained’’ to the salespersons
‘‘that shopping trade-ins was not acceptable policy and that
if someone chose to shop a trade-in, then he would make a
career adjustment for them.’’21
Keith Allen, employed as a salesperson by Respondent
from October 1983 until April 1984, when asked whether
Respondent had a policy with regard to shopping trade-ins
during his period of employment, testified:
I do not recall any policy to shopping trade-ins. We
were instructed to take the car to a specific used car
manager and he would appraise the vehicle and that
would be the set appraisal for that particular deal.
Mark Pagan, Respondent’s general sales manager from
1982 until 1987, when asked by counsel for Respondent
whether Respondent had a policy in favor or against its
salespersons shopping a trade-in, testified ‘‘the policy was
that it was something that was available to the salespersons,’’
but also testified that Respondent did not encourage its sales-
persons to shop trade-ins because such conduct adversely af-
fected Respondent’s profit on the resale of customers’ trade-
ins. Pagan further testified Respondent did not prohibit its
salespersons from shopping their customers’ trade-ins and
denied ever telling Sales Manager Levy, ‘‘to indicate some
kind of policy or policy change regarding the shopping of the
trade-in.’’
Pagan’s above-described testimony establishes that when
Sales Manager Levy spoke to the salespersons at a sales
meeting in January 1985 and prohibited them from shopping
trade-ins, that Respondent’s policy prior to that time had
been to allow its salespersons to shop trade-ins; it had not
prohibited its salespersons from engaging in this type of con-
duct.22 However, in January 1985 Sales Manager Levy an-
nounced a new policy to the salespersons at one of the week-
ly sales meetings. As described supra, he notified them that
they were prohibited from shopping a trade-in and that if
they engaged in this kind of conduct they would be termi-
nated. The record establishes that this new policy was an-
nounced without notice to Local 1095. I therefore find that
Respondent changed its salespersons’ existing terms and con-
ditions of employment in January 1985, by prohibiting them
from shopping trade-ins, and further find that by engaging in
this conduct unilaterally, without affording Local 1095 an
opportunity to bargain about the matter, Respondent violated
Section 8(a)(5) and (1) of the Act.
In so concluding, I considered that Levy was not a super-
visor within the meaning of Section 2(11) of the Act and
considered the testimony of General Sales Manager Pagan
that he never told Levy ‘‘to indicate some kind of policy or
policy change regarding the shopping of the trade-in.’’ Nev-
ertheless, I have attributed Levy’s conduct to Respondent for
these reasons.
An employer need not have given express authority to an
individual in order to be held responsible for the individual’s
conduct. Under the doctrine of ‘‘apparent authority,’’ the acts
of another will be attributed to the employer if a third
party—here, the salespersons—could reasonably believe, on
the basis of the employer’s conduct, that it had consented to
have a particular act done on its behalf. NLRB v. Donkin’s
Inn, 532 F.2d 138, 141 (9th Cir. 1976); Dentech Corp., 294
NLRB 924, 925 (1989); Restatement (Second) of Agency,
§ 27 (1958). Thus, apparent authority exists when the em-
ployer either intends ‘‘to cause the third person to believe
that the agent is authorized to act for him, or . . . should
realize that his conduct is likely to create such belief.’’ Re-
statement (Second) of Agency, § 27 (1958, Comment). See
also Dentech Corp., supra at 925. Even if the conduct of an-
other was contrary to an employer’s express instruction, the
employer will be held responsible for that conduct if employ-
ees could reasonably believe that the acts were authorized.
NLRB v. Georgetown Dress Corp., 537 F.2d 1239, 1244 (4th
Cir. 1976). See NLRB v. Crown Laundry & Dry Cleaners,
437 F.2d 290, 293 (5th Cir. 1971). I am persuaded that under
the circumstances of this case that Levy’s January 1985 an-
nouncement to the salespersons, prohibiting them from shop-
ping trade-ins, was attributable to Respondent. In January
913TOYOTA OF BERKELEY
1985 Levy was employed by Respondent as the sales man-
ager of Respondent’s Toyota of Berkeley salespersons and
was their immediate supervisor. He had occupied that posi-
tion since sometime between April 1, 1984, and January
1985. As the salespersons’ immediate supervisor he was re-
sponsible for conducting their weekly sales meetings. It was
at those meetings that salespersons were informed about Re-
spondent’s policies and changes in those policies. They were
given this information by Levy. Although Levy was not re-
sponsible for formulating Respondent’s policies or the
changes in its policies, it was part of his job as sales man-
ager to speak to the salespersons at the weekly sales meet-
ings and, on behalf of management, inform them about the
Company’s policies and changes in those policies. In the in-
stant case I am persuaded that under the above-described cir-
cumstances, Levy’s January 1985 announcement to the sales-
persons prohibiting them from shopping trade-ins, was attrib-
utable to Respondent. For, where, as here, an employer per-
mits its sales manager to conduct employee sales meetings
and also permits him, on behalf of management, to inform
the salespersons at those meetings about the Company’s poli-
cies and changes of policies, the employees could reasonably
believe that the employer had given the sales manager the
authority to make a statement prohibiting the salespersons
from shopping trade-ins. Further since Respondent itself cre-
ated the circumstances in which the salespersons could rea-
sonably believe that Levy’s announcement prohibiting the
shopping of trade-ins was authorized, it is of no significance
that, as Respondent apparently contends, it was not author-
ized by General Sales Manager Pagan. See Alliance Rubber
Co., 286 NLRB 645, 645–646 (1987) (polygraph examiners
who asked employees unauthorized questions about union ac-
tivities were agents of employer because they acted within
general scope of authority conferred on them to conduct ex-
aminations and employer should have known employees
would likely believe examiners had authority to ask all ques-
tions asked).
Respondent discontinues providing demonstrator motor
vehicles to its salespersons
Section 8 of Respondent’s 1982–1983 Agreement with
Local 1095 provided that, ‘‘[t]he Employer shall make avail-
able to each new car salesman in his employ adequate dem-
onstrating and transportation facilities in accordance with any
one of the following plans.’’ These plans, four in number,
as set forth in the agreement, may be summarized as follows.
‘‘Plan 1’’ provided for Respondent to sell a current model
demonstrator to its salespersons at factory cost and furnish
to the salespersons, in connection with that motor vehicle,
the following items free of charge each month of their em-
ployment: a cash allowance of $40 for a 4-cylinder vehicle,
$50 for a 6-cylinder vehicle, and $60 for an 8-cylinder vehi-
cle; one oil change and grease, or maintenance of the vehicle
in accordance with factory recommendation; and, all reason-
able mechanical upkeep.
‘‘Plan 2’’ provided for Respondent to rent to its sales-
persons a current model demonstrator at a monthly rental of
$50 and provided that the rental fee would include all the
cost of all necessary insurance. Under ‘‘Plan 2’’ the sales-
persons were to be furnished with the identical monthly cash
allowance and maintenance as provided under ‘‘Plan 1.’’
‘‘Plan 3’’ reads as follows: ‘‘By providing each new car
salesman, without cost whatsoever to him, adequate transpor-
tation during business hours, through current models or oth-
erwise, for his use in calling upon prospects, soliciting busi-
ness, and demonstrating and selling motor vehicles. In the
event the employee is assigned other than a current model
under the plan, he may, at his option, avail himself of ‘Plan
No. 1.’’’
‘‘Plan 4’’ reads as follows: ‘‘By any other arrangement
which now exists in the particular dealership involved,
which, in the opinion of the employee and union, is more ad-
vantageous to the employee than either ‘Plan No. 1’ or ‘Plan
No. 2.’’’
In addition to the above, section 8 of the 1982–1983
Agreement also provided that if Respondent required a sales-
person to furnish his or her own automobile for company
business, Respondent agreed to furnish the salesperson with
the identical monthly cash allowances and monthly mainte-
nance provided for in ‘‘Plan 1.’’
In September 1983, when Respondent entered into its
1982–1983 Agreement with Local 1095, it was renting dem-
onstrator motor vehicles to its salespersons, in the same man-
ner as provided for in the above-described ‘‘Plan 2’’ of the
1982–1983 Agreement. As described infra, Respondent con-
tinued to do this until January 30, 1985.
On January 30, 1985, Respondent discontinued renting
demonstrator motor vehicles to its new and used car sales-
persons and instead, on that date, gave its salespersons the
opportunity to purchase from Respondent new cars at factory
cost to use as demonstrators. As part of this offer, the sales-
persons were required to carry certain limits of insurance
designated by Respondent. In addition, Respondent offered to
guarantee the financing of these motor vehicles, if they were
purchased by January 30, 1985.
The record is silent as to whether or not Respondent’s new
demonstrator program instituted on January 30, 1985, pro-
vided for the payment of monthly cash allowances to the
salespersons depending upon the number of cylinders in the
demonstrator cars they purchased and whether it provided
free monthly maintenance for those cars. However, the
record does show that as part of this new demonstrator pro-
gram, if a salesperson sold a certain number of motor vehi-
cles a month, Respondent would pay the salesperson $250
for that month to cover the expense of not having Respond-
ent provide a demonstrator, as it had done in the past.
In December 1984, the salespersons were notified by Re-
spondent that it intended to discontinue renting them demon-
strator motor vehicles. On December 18, 1984, Local 1095’s
secretary-treasurer, Salvaressa, wrote Respondent’s owner
that Local 1095 was ‘‘objecting to the unilateral change
made recently with the taking away of the employees’ dem-
onstrator,’’ and asked that the program be reinstated and Re-
spondent negotiate with Local 1095 concerning any future
changes. Thereafter, in January 1985, prior to January 30,
Salvaressa and Local 1095’s business agent, Silva, met with
Respondent’s general sales manager, Pagan, and its labor re-
lations consultant. Local 1095’s representatives asked for a
copy of Respondent’s new demonstrator program, asked
whether the salespersons were going to be forced to purchase
demonstrators under the new program, and asked how the
sales would be financed. Respondent’s representatives stated
they did not have a copy of the new plan to give to Local
914 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 As I have found supra, because of the ultimate result of the Feb-
ruary 22, 1984 representation election, as of that date, Respondent
was obligated to bargain with Local 1095 before it made any unilat-
eral changes in its salespersons’ existing terms and conditions of em-
ployment. However, as I have also found supra, because of Respond-
ent’s previous lawful withdrawal of recognition, it could not be pre-
sumed that the salespersons’ existing terms and conditions of em-
ployment were the same as had been embodied in the 1982–1983
Agreement.
1095 and stated the salespersons would be able to lease a
motor vehicle from Respondent if they did not want to pur-
chase one. Salvaressa asked whether Respondent had decided
to take away the salespersons’ demonstrators because of a
ruling by the Internal Revenue Service. Pagan replied by
stating that the reason Respondent had decided to discontinue
making demonstrator motor vehicles available to the sales-
persons was because the salespersons in driving those cars
had been getting into too many accidents. Salvaressa asked
to see the Company’s records showing the number of such
accidents. Pagan refused to furnish this information. The
meeting ended with Local 1095’s representatives asking to
see the entire package Respondent intended to offer to the
salespersons to take the place of its previous rental program.
Local 1095’s representatives explained to Respondent’s rep-
resentatives that Local 1095 could not make an intelligent
decision about the matter until they were informed about the
new program in its entirety. However, Respondent went
ahead on January 30, 1985, and, as described supra, imple-
mented its new demonstrator program, without any further
communication with Local 1095.
The complaint, as amended, alleges that ‘‘commencing on
or about January 31, 1985, Respondent discontinued its pol-
icy of providing demonstrator vehicles to salespersons’’ and
further alleges Respondent engaged in this conduct without
notice to Local 1095 and without affording Local 1095 an
opportunity to bargain about the matter, thereby violating
Section 8(a)(5) and (1) of the Act. This allegation has merit.
As described supra, during the time material Respondent
rented demonstrator motor vehicles to its salespersons, but on
January 30, 1985, without giving Local 1095 an opportunity
to bargain, discontinued its policy of renting demonstrator
motor vehicles to its salespersons and instead substituted a
new demonstrator program whereby the salespersons would
be able to purchase their demonstrator motor vehicles from
Respondent at factory cost. Having found supra, that at this
time Respondent was obliged to bargain with Local 1095 be-
fore making any unilateral changes in its salespersons’ exist-
ing terms and conditions of employment, I further find that,
as alleged in the complaint, by unilaterally discontinuing its
policy of renting demonstrator motor vehicles to its sales-
persons on January 30, 1985, that Respondent violated Sec-
tion 8(a)(5) and (1) of the Act.
In so concluding I considered Respondent’s contention that
it did not act unilaterally by engaging in this conduct, ‘‘be-
cause there was no evidence showing that the replacement
program or [Respondent’s] policies violated any of the plans
permitted under section 8 of the [1982–1983 Agreement].’’
In other words, Respondent argues that by virtue of the pro-
visions contained in the 1982–1983 Agreement whereby
Local 1095 agreed that one of the ways Respondent could
make demonstrator motor vehicles available to its sales-
persons was by affording them the opportunity to purchase
such vehicles from Respondent at factory cost, that Local
1095 waived its statutory right to bargain about the new pro-
gram. This argument assumes Local 1095, as of January
1985, was bound by the terms of section 8 of the expired
1982–1983 Agreement. I am persuaded this was not so be-
cause, as described supra, on December 13, 1983, after the
expiration of the 1982–1983 Agreement, Respondent lawfully
withdrew recognition from Local 1095 and as of that date
was no longer legally obligated to abide by the terms and
conditions established by the 1982–1983 Agreement.23 Local
1095, in view of this, was likewise no longer bound by the
provisions of the 1982–1983 Agreement. To hold otherwise
would be inequitable. It is for this reason that I reject Re-
spondent’s waiver argument.
Respondent reduces the rate of commission for
new salespersons
The 1982–1983 Agreement between Respondent and Local
1095 classified salespersons as either ‘‘beginner’’ or ‘‘reg-
ular’’ salespersons. It defined ‘‘regular’’ salespersons as all
salespersons other than ‘‘beginner’’ salespersons, and defined
a ‘‘beginner’’ salesperson as ‘‘an automobile salesman who
has less than six months experience in the selling or leasing
of motor vehicles.’’
Section 6 of the Agreement provided that the ‘‘commis-
sion on new vehicles shall be computed on the basis of 35%
of gross profit in the deal’’ and that ‘‘the regular commission
on used motor vehicles shall be 30% of the gross profit.’’
These provisions applied to the salespersons classified as
‘‘regular’’ salespersons. They did not apply to the sales-
persons classified as ‘‘beginner’’ salespersons. Rather, the
agreement provided that during their first 18 months of em-
ployment, salespersons classified as ‘‘beginner’’ salespersons
could be paid less than the ‘‘regular’’ salespersons. In this
regard, section 7 of the agreement provided that during the
first 6 months of their employment ‘‘beginner’’ salespersons
‘‘shall receive not less than 50% of a regular commission,’’
and during the second 6 months ‘‘shall receive not less than
65% of a regular commission,’’ and during their third 6
months of employment ‘‘shall receive not less than 80% of
a regular commission.’’ The agreement also provided that the
balance ‘‘of the above regular commissions’’ shall be paid
to the ‘‘regular’’ salespersons who assisted the ‘‘beginner’’
in the close of the sale or lease of the motor vehicles, and
that ‘‘beginner’’ salesperson could advance to the status of
a ‘‘regular’’ salesperson at any time, but in no event would
a salesperson be classified as a ‘‘beginner’’ for more than 18
months.
The record establishes that following the expiration of the
1982–1983 Agreement on May 31, 1983, that, as provided
in the 1982–1983 Agreement, Respondent as a rule continued
to pay its experienced salespersons 35 percent of the gross
profit for selling a new motor vehicle and 30 percent of the
gross profit for selling a used motor vehicle.
It is also clear that starting in late June 1983 and continu-
ing to the time material that newly hired salespersons, who
were without prior experience selling motor vehicles, but
who had been hired after completing Respondent’s 6-week
training program, were compensated by Respondent pursuant
to the following policy: during their first 3 months of em-
ployment they were classified as ‘‘apprentice 1’’ and their
net commission per sale was computed at the rate of 26.25
915TOYOTA OF BERKELEY
24 The testimony of Respondent’s former general sales manager
Pagan, was unreliable when he testified about the rate of commission
paid by Respondent to the inexperienced salespersons who did not
attend Respondent’s training school, inasmuch as it was clear that
his memory had been dimmed by the passage of time, in particular
by the fact he was being asked to testify about a matter which oc-
curred at least 5 years prior to his testimony and by the fact that
he had not even been employed by Respondent for the past 3 years
(see Tr. pp. 476–477).
25 Respondent hired Forrestall early in 1985. He was classified as
a ‘‘beginner’’ salesperson and did not, prior to his hire, attend Re-
spondent’s training school.
26 Each of Brown’s 30-percent commissions involved the sale of
a used car.
27 The record does not reveal whether Purdy, Hughes, or Aust
were experienced automobile salespersons or how they were classi-
fied by Respondent. As noted supra, Forrestall had little experience
as an automobile salesperson and was classified as a ‘‘beginner’’
salesperson.
28 Each of the sales for which Brown, Selinsky, and Russell re-
ceived a 30-percent sales commission involved the sale of a used
motor vehicle.
29 Except for Forrestall, supra, the record does not reveal whether
any of these salespersons were experienced salespersons or how they
were classified by Respondent.
30 Each of the sales for which Brown, Selinsky, and Russell re-
ceived a 30-percent sales commission involved the sale of a used
car.
31 Except for Forrestall, supra, the record does not reveal whether
Respondent regarded any of these salespersons as experienced sales-
persons for purposes of computing their rate of commission. Except
for Forrestall, supra, and Hedrick, Eversley, Burleigh, and Coerper,
the record does not reveal whether any of these salespersons were
experienced motor vehicle salespersons. As to Eversley, Burleigh,
and Coerper, the record indicates they had only recently been hired
by Respondent and were without prior motor vehicle sales experi-
ence (G.C. Exhs. 5(d)–(f)). As to Hedrick, the record indicates he
was hired in May 1985 and had prior experience as a motor vehicle
salesperson (G.C. Exh. 5(q)).
32 Russell’s and Selinsky’s sales each involved the sale of a used
car.
percent of Respondent’s gross profit; during the next 3
months they were classified as ‘‘apprentice 2’’ and their net
commission per sale was computed at 29.75 percent of Re-
spondent’s gross profit; at the end of 6 months they were
classified as ‘‘journeyman 1’’ and their net commission per
sale was computed at 35 percent of Respondent’s gross prof-
it, minus $20; at the end of 1 year they were classified as
‘‘journeyman 2’’ and their net commission per sale was com-
puted at the rate of 35 percent of Respondent’s gross profit,
minus $15; and, at the end of 18 months they were classified
as ‘‘salesman’’ and their net commission per sale computed
at the rate of $35 of Respondent’s gross profit, less $10.
The record reveals that even after instituting its above-de-
scribed compensation policy for the salespersons hired after
completing its 6-week training program, that Respondent
continued to hire inexperienced salespersons who had not
taken this training program. The record does not show
whether it was Respondent’s policy to treat this group of
hires in the same manner as it had been required to com-
pensate ‘‘beginner’’ salespersons under the terms of the
1982–1983 Agreement. Also, there is no evidence of Re-
spondent’s compensation policy toward this group of sales-
persons, subsequent to its institution of the compensation
program for the graduates of its training school.24
The complaint, as amended, alleges that ‘‘commencing on
or about March 1 1985, Respondent reduced the rate of com-
mission for new salespersons from 35% to 25%,’’ and fur-
ther alleges Respondent engaged in this conduct without no-
tice to Local 1095 and without affording that union an op-
portunity to bargain about the reduction, thereby violating
Section 8(a)(5) and (1) of the Act. In support of this allega-
tion counsel for the General Counsel in her posthearing brief
relied upon the following evidence.
The commission vouchers maintained by Respondent for
the 13 salespersons it employed in February 1985, show 2
of them received commission of less than 35 percent:
Forrestall received a commission of 25 percent of Respond-
ent’s gross profit on each of his three sales;25 and Brown re-
ceived a commission of 30 percent of Respondent’s gross
profit for 5 of his 10 sales.26
The commission vouchers maintained by Respondent for
the 17 salespersons it employed in March 1985, show that
7 of them received commission of less than 35 percent:
Purdy, Hughes, Forrestall, and Aust received commissions of
25 percent of Respondent’s gross profit on all of their
sales;27 and Brown, Selinsky, and Russell received commis-
sions of 30 percent of Respondent’s gross profit on all of
their sales.28
The commission vouchers maintained by Respondent for
the 15 salespersons employed during April 1985, show 9 of
them received commissions of less than 35 percent: Botelho,
Aust, Hughes, Purdy, Forrestall, and Morton received com-
mission of 25 percent of Respondent’s gross profit on all of
their sales;29 and, Russell, Selinsky, and Brown received
commissions of 30 percent of Respondent’s gross profit on
all of their sales.30
The commission vouchers maintained by Respondent for
the 20 salespersons employed during May 1985, show 12 of
them received commissions of less than 35 percent: Botelho,
Hughes, Purdy, Hedrick, Forrestall, Aust, Semper, Eversley,
Burleigh, and Coerper received commissions of 25 percent of
Respondent’s gross profits on all of their sales;31 and Russell
and Selinsky received commissions of 30 percent of Re-
spondent’s gross profit on all of their sales.32
The above-described evidence, relied on by the General
Counsel, fails to prove, as alleged in the complaint, that
‘‘commencing on or about March 1, 1985, Respondent re-
duced the rate of commission for new salespersons from 35%
to 25%.’’ I have reached this conclusion for these reasons.
If by ‘‘new salespersons’’ the complaint allegation is re-
ferring to the inexperienced salespersons whom Respondent
classified as ‘‘beginner’’ salespersons or to those inexperi-
enced salespersons hired by Respondent after having at-
tended Respondent’s training school, the allegation makes no
sense because Respondent was never obligated to compute
the commissions of those salespersons at the 35-percent rate.
For, under the commission rates set by the 1982–1983
Agreement and under the commission rates set by Respond-
ent in conjunction with its training program, Respondent was
perfectly justified in computing these salespersons’ commis-
sion at the 25-percent rate.
If by its reference to ‘‘new salespersons,’’ the complaint
allegation means to say that commencing on or about March
1, 1985, Respondent divided its experienced motor vehicle
salespersons into two groups, one group whom it continued
916 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to pay commissions computed at the 35-percent rate and the
other group of more recently employed salespersons, whom
it paid commissions at the reduced 25-percent rate, there is
not a scintilla of evidence to support this contention.
The sole indication in this record that any of Respondent’s
experienced automobile salespersons were paid less than the
35-percent commission rate paid by Respondent to its experi-
enced automobile salespersons is the evidence concerning
salesperson Hedrick, who, was hired in May 1985 and later
during that month split two sales with other salespersons for
which they shared a 25-percent commission. Hedrick’s em-
ployment application indicates he was an experienced motor
vehicle salesperson, but there is no evidence Respondent,
after checking out his alleged employment experience, con-
sidered him as experienced for compensation purposes. In
any event, this isolated episode involving one salesperson,
who had only been employed for less than 1 month and had
only sold two motor vehicles, both in conjunction with other
salespersons, is too thin a reed upon which to support the in-
stant allegation.
It is for the above reasons that I find the General Counsel
has not established that Respondent reduced the rate of com-
mission for ‘‘new’’ salespersons from 35 percent to 25 per-
cent. I therefore shall recommend that this allegation be dis-
missed.
E. The Refusal to Furnish Information
Respondent’s 1982–1983 Agreement with Local 1095 con-
tained a grievance procedure ending in binding impartial ar-
bitration, which covered grievances protesting employees’
discharges. During the term of the agreement Respondent
discharged salespersons Floyd Johnson, William Eckels, and
Edward Fontes on December 2, 1982, December 6, 1982,
and February 9, 1983, respectively. Local 1095, pursuant to
the agreement’s grievance machinery and during the term of
the agreement, filed grievances protesting their discharges.
As described infra, these grievances were presented to arbi-
trators who issued awards calling for reinstatement and back-
pay, which Respondent contested in court.
Johnson’s and Eckels’ awards
In the matter of Johnson’s grievance, on May 25, 1984,
Arbitrator William Eaton issued an award calling for his re-
instatement and backpay. Thereafter, when they could not
agree upon the amount of backpay due under the award, the
parties litigated this matter in April 1988 before Arbitrator
Eaton, who, subsequently awarded Johnson $32,236.54. Re-
spondent filed a motion to vacate the award with the United
States District Court for the Northern District of California.
It was heard by Judge J. P. Vukasin Jr. who, on October 30,
1989, issued an order vacating the award.
In the matter of Eckels’ grievance, on August 21, 1986,
Arbitrator Julius Draznin issued an award calling for his rein-
statement and backpay. Thereafter, when they could not
reach agreement upon the amount of backpay due under the
award, the parties litigated this matter in February and March
1988 before Arbitrator Draznin, who, on April 11, 1988,
awarded Eckels $150,417 in backpay. Respondent filed a
motion to vacate the award with the United States District
for the Northern District of California. It was heard by Judge
J.P. Vukasin Jr. who, on May 16, 1989, issued an order
vacating the award.
The sections of the 1982–1983 Agreement considered by
the arbitrators and Judge Vukasin in evaluating the grievants’
backpay claims, are as follows.
Section 17. Board of Adjustment:
. . . .
(17-7.5) Employer liability for any claim for back
wages shall be limited to the amount of wages the em-
ployee would have been entitled as outlined in Section
6-3 of the Agreement, less any unemployment com-
pensation entitlement or other compensation for per-
sonal services received from any source during the pe-
riod involved in the dispute;
Section 6. Computation of Commissions
. . . .
(6-3) Minimum Monthly Income: For each calendar
month commencing October 1, 1982, and ending May
31, 1983, each regular salesman shall be guaranteed a
minimum of eight hundred dollars ($800.00) remunera-
tion, and shall be paid the same in semimonthly install-
ments of four hundred dollars ($400.00) on the fifteenth
and the last day of each month, respectively, as an ad-
vance against that month’s commissions. Accordingly,
at the end of each calendar month, the Employer shall
total the commissions earned by and/or owing to each
salesman during said calendar month and shall there-
upon, within five (5) days, pay the salesman the said
commissions, less the eight hundred dollars ($800.00),
but if such employee’s said commissions aggregated
less than eight hundred dollars ($800.00) then, begin-
ning with the first day of that month, a three months’
wipe-off period shall commence. During this wipe-off
period the Employer shall advance and pay to such em-
ployee a sum sufficient to raise the amount of earned
commission to eight hundred dollars ($800.00) for each
month, so that, for the three months’ wipe-off period,
such employee shall receive in the aggregate the total
of his earned commissions during the three months, or
twenty-four hundred dollars ($2,400.00) whichever is
the greater; provided however, that if the earned com-
missions in the second month of such wipe-off period
when added to the earned commissions of the first
month, aggregate sixteen hundred dollars ($1,600.00) or
more, then the wipe-off period shall cease at the end
of the second month, and for each such two-month pe-
riod, the employee shall receive the total of his earned
commissions during the two months, or sixteen hundred
dollars ($1,600.00) whichever is the greater.
Section 14. Claims Limitations—Stale Claim Clause
(14-1) No claims by a salesman for remuneration
under Section 6 of the Agreement shall be valid as to
any period of time in excess of sixty (60) days prior
to the time such claim is made in writing to the Em-
ployer by the salesman or the Union. If it is determined
under the grievance procedure in Section 17 of the
Agreement that the Employer has violated Section 6
with respect to such claim for a period in excess of
sixty (60) days the Employer shall be subject to liq-
uidated damages. In view of the difficulty of
917TOYOTA OF BERKELEY
33 Local 1095’s President, Salvaressa, testified he sent this letter
because Local 1095 had submitted Eckels’ discharge grievance to ar-
bitration and, if the grievance was found to have merit, Local 1095
wanted to have some idea of the backpay involved.
ascertaining the exact amount of damages suffered by
the Union and the remaining Employer parties to the
Agreement as a result of such violation, it is agreed that
the following schedule of liquidated damages shall
apply, and that such damages shall be paid to the Board
of Adjustment:
Period of Violation Amount of
In Excess of 60 Days Liquidated Damages
Up to 3 months $250
3 to 6 months 500
6 to 12 months 1000
12 to 18 months 1500
18 to 24 months 2000
(14-2) For the purposes of determining the amount
of liquidated damages owed under the foregoing sched-
ule, a single arrangement, plan, scheme or method in
violation of the compensation provisions of this Agree-
ment which involves more than one salesman during a
continuous period of time shall be considered a single
violation.
(14-3) Payments of such liquidated damages shall be
applied by the Board of Adjustment to such purposes
as it shall determine to be appropriate in the cir-
cumstances of the particular case, but in no event shall
such monies be paid to the claimant, or returned to the
Employer guilty of the violation.
In vacating the arbitrators’ backpay awards in Johnson’s
and Eckels’ cases, Judge Vukasin concluded that the arbitra-
tors ignored the express limits on their authority to award
backpay found in section 17 of the 1982–1983 Agreement,
and ignored the time limits and amounts of section 6-3, and
ignored the cap on liquidated damages found in section 14,
and reasoned that section 17 and section 6-3 of the agree-
ment, when considered together, authorized an arbitrator to
award backpay for the period beginning October 1, 1982, and
ending May 31, 1983, and guaranteed wages of only $800
per month for that period, and that section 14 of the 1982–
1983 Agreement set a maximum cap on liability of $2000 in
liquidated damages, and ultimately concluded that Eckels’
and Johnson’s backpay claims were subject to the $2000 cap
set for liquidated damages. Local 1095 appealed Judge
Vukasin’s orders vacating the arbitrators’ backpay awards for
Johnson and Eckels and its appeals are currently pending be-
fore the Court of Appeals for the Ninth Circuit.
Arbitrator Draznin’s reasoning, rejected by Judge Vukasin,
follows (G.C. Exh. 44):
The language of the Section in part (6-3) and in its en-
tirety relates only to the computation of commissions
and the auto sales personnel guaranteed monthly draw
against ‘‘that month’s commissions.’’ In no way does
Section 6-3 impact upon or relate to the issues and sub-
ject area involved in the discipline invoked against
Eckles. The inclusion of a reference to section 6-3 in
section 17-7.5 would appear to again relate to the com-
putation of wages due pursuant the ‘‘Computation of
Commissions’’ provisions of the Contract and therefore
would not be considered applicable here. In any event
the language of section 6 and its 6-3 relates to earnings
and minimums for said earnings. Since Eckles, at the
time of his discharge by the Company, was earning
more than the minimums cited in Article 6-3, that arti-
cle cannot be controlling here as the Employer argues.
I am aware of the fact that auto salespersons’ income
will fluctuate from time to time, but for purposes of
any proceedings such as this one, the only logical
course and certainly the most equitable one, in my
opinion, is to carry forward a projection of Eckles’
earnings while he was employed, for the ensuing time
period following his discharge up to the time of his re-
instatement.
The language of Article 14 which is titled ‘‘Claims
Limitation-Stale Claims Clause’’ clearly incorporates
section 6 into its standing in the Contract. Again sec-
tion 14, as well as section 6, deal only with the ‘‘Com-
putation of Commissions’’ and the issues related thereto
arising out of the possible Employer’s violations of sec-
tion 6 and therefore not related in any way whatsoever
to the issue at hand in the instant case. Therefore, sec-
tion 14 and the ‘‘liquidated damages’’ provisions cited
by the Employer are totally inappropriate here.
Fontes’ award
In the matter of Fontes’ grievance, on September 23, 1986,
Arbitrator Joe Henderson issued an award calling for his re-
instatement and backpay. Thereafter, Respondent filed a mo-
tion to vacate the award with the United States District Court
for the Northern District of California. It was heard by Judge
J. P. Vukasin Jr. who, on May 15, 1989, issued an order de-
nying Respondent’s motion to vacate the award and a further
order remanding the matter to a new and different arbitrator
for the purpose of considering the issue of the amount of
backpay due Fontes. As of the date of the hearing in the in-
stant unfair labor practice proceeding, the parties were in the
process of selecting an arbitrator to decide the question of
the amount of backpay due Fontes.
Local 1095’s requests for Information
On January 22, 1986, Local 1095’s president wrote a rep-
resentative of Respondent and requested that Local 1095 be
allowed to examine certain payroll records in order to deter-
mine the amount of backpay Respondent owed Eckels.33 The
letter reads as follows:
Automobile Salesmen’s Union, Local 1095 is re-
questing to examine Toyota of Berkeley pay records
from November 1982 thru January 1986, to determine
how much back pay Mr. William Echels [sic] should
have coming. By examining these records will show
what Mr. Echels could have made.
Local 1095 estimates his back pay thru January 1986
to be One Hundred Six Thousand Ninety Three Dollars
and Thirty Seven Cents ($106,093.37), this figure does
not include his Health and Welfare claims or any Pen-
sion contributions due him, these figures will be sub-
mitted at a latter date.
918 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
34 Attorney Rosenfeld testified his reason for requesting the infor-
mation asked for in his September 16, 1987 letter was that there had
been an arbitration award issued which called for Johnson’s rein-
statement and Respondent, through its attorney, indicated it was of-
fering Johnson his job back, so Local 1095 wanted to know the cir-
cumstances of his reinstatement. His reason for asking Respondent
to provide Local 1095 with the hours, wages and working conditions
of the other salespersons, Attorney Rosenfeld testified, was Local
1095 wanted to be sure Johnson was being reinstated pursuant to
Respondent’s 1987 terms and conditions of employment and not, as
had been indicated by Attorney Bobay, pursuant to the terms and
conditions which existed 5 years earlier, when he was discharged.
If you have any questions regarding this matter,
please contact our office or Mr. David Rosenfeld, Esq.
Respondent did not answer this letter.
In September 1987 Local 1095’s Attorney David
Rosenfeld asked Respondent’s Attorney John Bobay what
Floyd Johnson’s ‘‘compensation package’’ would be if John-
son accepted Attorney Bobay’s August 27, 1987 offer of re-
instatement. Attorney Bobay responded by letter dated Sep-
tember 8, 1987, in which he explained that if Johnson ac-
cepted Respondent’s offer of reinstatement he would be em-
ployed at the same location as he had been when he was dis-
charged and would receive the same ‘‘remuneration’’ as he
had been receiving at the time of his discharge in 1982. At-
torney Rosenfeld replied by letter to Attorney Bobay, dated
September 16, 1987, which reads as follows.
Your letter of September 8, 1987, is inadequate. Please
specify the compensation package including health and
welfare and pension or the equivalent you are offering
Mr. Johnson. Please also give us the hours and type of
work involved. Also, would you please provide us with
the hours, wages and conditions applicable to all sales-
men to insure that Mr. Johnson is being treated equi-
tably. No. 1095 remains the bargaining representative
and should you fail to provide this information, we will
take the position with the arbitrator that you have not
told your Back Pay liability.
Attorney Bobay responded by letter dated September 24,
1987, which stated that after reviewing Attorney Rosenfeld’s
letter of September 16, 1987, he concluded that Attorney
Rosenfeld was ‘‘simply playing games with [Respondent]’’
and stated if Attorney Rosenfeld ‘‘had been serious about
pursuing the offer of reinstatement [he] would have had Mr.
Johnson speak with [Respondent’s owner] directly as sug-
gested in the August 27 offer.’’34 Respondent did not give
Attorney Rosenfeld or Local 1095 the information requested
in Attorney Rosenfeld’s letter of September 16, 1987.
On January 12, 1988, Attorney Rosenfeld, on behalf of
Local 1095, wrote Respondent’s Attorney, John Bobay, the
following letter:
Now that the court’s have enforced all three arbitration
awards, it is imperative that Toyota of Berkeley permit
Local 1095 to examine all records of salesmen com-
pensation from July, 1983 to the present. We need
those records in order to evaluate the amount of back
pay owed the three grievants (Johnson, Eckles, and
Fontes). If you fail to agree upon a date when we can
inspect those records, we will simply have to include
that in Charges before the Labor Board.
Respondent did not furnish to Attorney Rosenfeld or Local
1095 the information requested in the January 12, 1988 let-
ter.
The applicable law
The complaint alleges Respondent refused to bargain with
Local 1095 within the meaning of Section 8(a)(5) of the Act
when it failed and refused to furnish Local 1095 the informa-
tion requested in Local 1095’s above-described letters of Jan-
uary 22, 1986, September 16, 1987, and January 12, 1988.
This allegation has merit for the reasons below.
An employer has an obligation under Section 8(a)(5) of
the Act to furnish its employees’ bargaining representative
with requested information that is relevant and necessary to
the representative’s effective performance of its collective-
bargaining responsibilities. NLRB v. Acme Industrial Co.,
385 U.S. 432, 435–437 (1967). This obligation extends to a
union’s request for information in connection with grievance
proceedings under a collective-bargaining agreement (id. at
438–439), and does not terminate when the grievance has
been taken to arbitration. Chesapeake & Potomac Telephone
Co. v. NLRB, 687 F.2d 633 (2d Cir. 1982); Fawcett Printing,
201 NLRB 964, 972–973 (1973); Kroger Co., 226 NLRB
512 (1976).
The threshold question in determining whether an em-
ployer must provide information is ‘‘always one of rel-
evance.’’ San Diego Newspaper Guild v. NLRB, 548 F.2d
863, 867 (9th Cir. 1977). The standard for determining
whether information is relevant is a liberal ‘‘discovery type
standard,’’ and the question is only whether there is a ‘‘prob-
ability that the desired information [is] relevant, and that it
would be of use to the union in carrying out its statutory du-
ties and responsibilities.’’ NLRB v. Acme Industrial Co.,
supra at 437. Once this initial showing of relevance has been
made, ‘‘the employer has the burden to prove a lack of rel-
evance . . . or to provide adequate reasons as to why he
cannot, in good faith, supply such information.’’ San Diego
Newspaper Guild v. NLRB, supra at 867.
Where, as here, the information sought by Local 1095 di-
rectly relates to the employment conditions of bargaining
unit employees, the information is deemed presumptively rel-
evant. NLRB v. Whitin Machine Works, 217 F.2d 593, 594
(4th Cir. 1954). An employer can rebut that presumption by
demonstrating the information actually is being sought for an
improper purpose. NLRB v. A. S. Abell, 624 F.2d 506, 510
(4th Cir. 1980); NLRB v. Associated General Contractors,
633 F.2d 766, 770 (9th Cir. 1980); Chemical Workers Local
6-418 v. NLRB, 711 F.2d 348, 359 (D.C. Cir. 1983). The
presumption cannot be rebutted, however, by attempting to
demonstrate that the requested information could not alone
substantiate a grievance under the parties’ contract or that a
grievance would not ultimately be upheld by an arbitrator.
See NLRB v. Acme Industrial Co., supra at 437; NLRB v.
Safeway Stores, 622 F.2d 425, 428 (9th Cir. 1980).
Analysis and Conclusions
The information requested by Local 1095 on September
16, 1987, was relevant to Local 1095’s performance of its
duties as grievant Johnson’s representative in the processing
919TOYOTA OF BERKELEY
35 The record shows that Eckels had not been reinstated as of Jan-
uary 1986. I also note, as discussed infra, that Local 1095 was using
a reasonable method of computation when it asked to see the earning
records of the other salespersons employed during Eckels’ alleged
backpay period for the purpose of estimating Eckels’ potential back-
pay.
36 In asking for the compensation records of the salespersons em-
ployed by Respondent, Local 1095 intended to use a reasonable
method to compute the grievants’ backpay. Thus, in arriving at a
gross backpay figure for each of the grievants, it was necessary for
Local 1095 to determine their probable earnings during the backpay
period had they not been wrongfully discharged. Since such an in-
quiry requires a hypothetical reconstruction of past events, the back-
pay projection is but an approximation of the true amount. One of
the standard methods used to compute backpay in such a situation,
especially where, as here, the compensation of the workers involved
is based on incentive earnings, is known as the representative em-
ployees method. Pursuant to this method, the grievants’ backpay is
computed by using the earnings of a group of employees employed
during the alleged backpay period to estimate the grievants’ loss of
earnings. However, to use this formula it was first necessary for
Local 1095 to examine the compensation records of the salespersons
employed by Respondent during the alleged backpay period.
37 The record shows that as of January 1988 Eckels had not been
offered reinstatement, as required by the arbitrator’s reinstatement
award. The record does not reveal whether Johnson or Fontes, as of
January 1988, had been offered reinstatement as required by the ar-
bitrators’ reinstatement awards. However, since the information re-
quested by Local 1095 concerning Johnson’s and Fontes’ backpay
claims was presumptively relevant, if Respondent intended to justify
its refusal to furnish the information on the basis that Johnson’s and
Fontes’ backpay periods had been tolled prior to January 1988 by
offers of reinstatement, the burden was on Respondent to prove this.
In any event, since the record shows that Eckels had not been of-
fered reinstatement as required by the arbitrator’s award, such a de-
fense would be without merit in his case.
38 Respondent offers no justification for its refusal to furnish the
information requested by Local 1095 in its September 16, 1987 in-
formation request.
of his discharge grievance. The requested information was
germane to the issue of whether Respondent’s offer to rein-
state Johnson fulfilled its reinstatement obligation under the
arbitrator’s award. The requested information was reasonably
calculated to reveal the existing terms and conditions of em-
ployment of Respondent’s current salespersons and if it re-
vealed to Local 1095 that their terms and conditions of em-
ployment had improved substantially since Johnson’s 1982
discharge, then Local 1095 would be in a position to con-
tend, before the arbitrator, that Respondent’s offer to rein-
state Johnson with the same ‘‘remuneration’’ as he had re-
ceived in 1982, did not constitute a valid offer of reinstate-
ment. Under the circumstances, by its refusal to furnish to
Local 1095 the information requested in Attorney
Rosenfeld’s September 16, 1987 letter to Attorney Bobay,
Respondent violated Section 8(a)(5) and (1) of the Act.
The information requested by Local 1095 on January 22,
1986, was relevant to Local 1095’s performance of its duties
as grievant Eckels’ representative in the processing of his
discharge grievance. The requested information was germane
to the issue of the amount of backpay Eckels was entitled
to as the result of his alleged wrongful discharge. I realize
that when Local 1095 requested this information, Eckels’
grievance had only been submitted to arbitration and that it
had not as yet been heard by an arbitrator. Nonetheless, it
was necessary at that time for Local 1095, as Eckels’ griev-
ance representative, to arrive at a reasonable estimate of
Eckels’ potential backpay, so as to intelligently formulate a
settlement offer, in an effort to avoid the risk of arbitration.
In performing its duties as Eckels’ grievance representative
Local 1095 was obligated to evaluate the prospects for a
compromise settlement before, as well as during and after,
the case had been presented to an arbitrator for decision. It
is for this reason that on January 22, 1986, Local 1095 was
entitled to see Respondent’s ‘‘pay records from November
1982 through January 1986, to determine how much backpay
William Eckels should have coming.’’35 In view of this, by
its refusal to furnish Local 1095 with the information which
was requested in Local 1095’s January 22, 1986 letter to Re-
spondent’s representative, Respondent violated Section
8(a)(5) and (1) of the Act.
The information requested by Local 1095 on January 12,
1988, was relevant to the performance of its duty as the rep-
resentative of grievants Johnson, Eckels, and Fontes in the
processing of the grievances protesting their discharges. The
requested information was germane to the issue of the
amount of backpay each of the grievants was entitled to re-
ceive pursuant to the arbitrators’ backpay awards. By January
12, 1988, the arbitrators in the cases of all three of the griev-
ants had issued awards directing that they were to be rein-
stated with backpay, and Local 1095 was getting ready to
submit their backpay claims to the arbitrators. In preparing
to do this, as explained in its January 12, 1988 information
request, Local 1095 needed ‘‘to examine all records of sales-
men compensation from July 1983 to the present . . . in
order to evaluate the amount of backpay owed to the three
grievants.’’ Local 1095 needed this information to intel-
ligently formulate the grievants’ backpay claims, to present
their backpay claims to the respective arbitrators, to assist the
arbitrators in determining the Respondent’s backpay obliga-
tion, and to intelligently assess the prospects for a com-
promise or settlement prior to or during the hearings before
the arbitrator concerning the backpay claims. It is for these
reasons that on January 12, 1988, Local 1095 was entitled
to examine the compensation records of Respondent’s sales-
persons employed from July 1983 to January 12, 1988, for
the purpose of determining the amount of backpay owed to
grievants Johnson, Eckels, and Fontes, pursuant to the arbi-
trators’ reinstatement and backpay awards.36 In view of this,
Respondent violated Section 8(a)(5) and (1) of the Act when
it refused to furnish Local 1095 with the information which
was requested in Attorney Rosenfeld’s January 12, 1988 let-
ter to Attorney Bobay.37
In its posthearing brief Respondent argues that its refusal
to furnish Local 1095 with the information requested in At-
torney Rosenfeld’s letters of January 22, 1986, and January
12, 1988, was justified for the following reasons:38 Local
1095 waived its statutory right to the information by failing
to ask the arbitrators to compel Respondent to furnish the in-
formation and by otherwise failing to raise this issue with ei-
ther the arbitrators or Judge Vukasin; the information was
not necessary or relevant to the processing of the grievants’
backpay claims because the governing collective-bargaining
agreement limits the grievants’ backpay to $2000 per griev-
ant; and, the requests for the information are premature be-
cause the arbitrators’ backpay awards have been vacated by
Judge Vukasin. These arguments lack merit.
920 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
39 In the case of Fontes’ grievance, it was Judge Vukasin who con-
firmed the arbitrator’s reinstatement award and who ordered that a
different arbitrator consider the matter for purposes of determining
Respondent’s backpay liability. Therefore, the arbitrator who decides
Fontes’ backpay claim will be governed by Judge Vukasin’s inter-
pretation of the collective-bargaining agreement.
40 That Local 1095’s interpretation of the agreement was not frivo-
lous or unreasonable is demonstrated by the fact that the two arbitra-
tors who have considered the matter, agreed with its interpretation.
I can find no legal authority, and Respondent has cited
none, to support the novel proposition that a union waives
its statutory right to information, in connection with proc-
essing a grievance under a collective-bargaining agreement,
by failing to ask an arbitrator or a court to compel the union
to furnish the requested information. In fact, this contention
borders on the frivolous where, as here, there is no provision
in the governing collective-bargaining agreement which obli-
gates Respondent to furnish Local 1095 with information in
connection with the administration of the agreement. Re-
spondent’s further contentions, however, which are based on
Judge Vukasin’s interpretation of the governing collective-
bargaining agreement, raise difficult questions.
As described supra, Judge Vukasin vacated the backpay
awards issued by Arbitrators Eaton and Draznin in the cases
involving Johnson’s and Eckels’ grievances, because he con-
cluded that the arbitrators had ignored the express terms of
the governing collective-bargaining agreement which, as in-
terpreted by Judge Vukasin, limited the grievants’ backpay to
no more than $2000.39 Local 1095, as noted supra, has ap-
pealed Judge Vukasin’s decisions. However, if the Court of
Appeals rejects Local 1095’s appeals, Local 1095’s request
for the compensation records of Respondent’s salespersons,
which were based on an alleged backpay period of several
years duration, will have no possible relevance to the griev-
ants’ backpay claims inasmuch as their backpay claims will
be limited to $2000. Therefore, Respondent argues that the
requested information has no probable relevance to the griev-
ants’ backpay claims, and for this reason its refusal to fur-
nish the requested information did not constitute a violation
of the Act. I disagree.
The law is settled that the merits of an unfrivolous griev-
ance need not be resolved as a predicate to the Board’s ‘‘act-
ing upon the probability that the desired information was rel-
evant.’’ NLRB v. Acme Industrial Co., supra at 437. In this
regard, in NLRB v. Safeway Stores, supra at 428–430, the
court held that a union’s statutory right to information rel-
evant to a grievance that is not on its face frivolous, cannot
be defeated by an argument that an employee’s conduct is
nongrievable. See also NLRB v. Davol, Inc., 597 F.2d 782,
786–787 (1st Cir. 1979). Any other rule would place unions
in the position of having to litigate questions going to the
merits of their claims as a predicate to being able to secure
information which could obviate the need for such litigation
in the first instance, and would also place the Board in the
role which the Board should avoid, namely the role of decid-
ing contractual questions which are best left to the arbitrator
who has to rule on the underlying grievance. I am of the
opinion that the above-described principles govern the instant
situation. I recognize that the request for information here
did not arise in the context of an employer’s contention that
it was justified in refusing to provide information because
the employee grievance involved was nongrievable under the
governing collective-bargaining agreement. Rather, it arose in
the context of an employer’s contention that a union did not
need the information it had requested to process a grievant’s
backpay claim, because under the employer’s interpretation
of the governing agreement, the requested information was
irrelevant to the grievant’s backpay claim. Nonetheless,
where, as here, Local 1095’s interpretation of the collective-
bargaining agreement is not unreasonable,40 I am persuaded
that the above principles, enunciated by the Supreme Court
and the courts of appeals in Acme, Safeway, and Davol, gov-
ern. The dispute underlying the instant unfair labor practice
proceeding is not whether the governing collective-bar-
gaining agreement limited Respondent’s backpay liability to
not more than $2000, as contended by Respondent, or, as
contended by Local 1095, obligated Respondent to pay the
grievants for their loss of earnings from the date of their dis-
charges until Respondent offered them reinstatement. For, as
indicated supra, when deciding whether an employer has a
duty to furnish information, the Board does not pass on the
merits of the underlying contractual dispute in reference to
which the information is sought. NLRB v. Acme Industrial
Co., supra at 437; NLRB v. Davol, Inc., supra at 786–787
(1st Cir. 1979). The issue before me is not whether Respond-
ent’s or Local 1095’s interpretation of the contract was cor-
rect, but whether Respondent failed to fulfill its statutory bar-
gaining obligation by refusing to furnish, upon request, infor-
mation relevant to Local 1095’s proper performance of its
duties under the Act. NLRB v. Acme Industrial Co., supra at
437. It is for this reason that I reject Respondent’s contention
that because of Judge Vukasin’s interpretation of the gov-
erning collective-bargaining agreement, it was not obligated
under the Act to furnish to Local 1095 the requested infor-
mation herein.
Having found that Respondent violated Section 8(a)(5) and
(1) of the Act in January 1986 by refusing to furnish Local
1095 with the pay records of the salespersons it employed
from November 1982 through January 1986 and having
found that Respondent violated Section 8(a)(5) and (1) in
January 1988 by refusing to furnish Local 1095 with the pay
records of the salespersons it employed from July 1983 to
January 12, 1988, I would normally, in addition to rem-
edying these violations of the Act by ordering Respondent
not to engage in similar conduct in the future, affirmatively
order Respondent to furnish the requested information to
Local 1095. However, in view of the unusual circumstances
of this case I do not believe such a remedy would effectuate
the policies of the Act. For, as I have found supra, if Judge
Vukasin’s order vacating the backpay awards of Arbitrators
Eaton and Draznin are affirmed by the Court of Appeals for
the Ninth Circuit, the above-described information requested
by Local 1095 on January 22, 1986, and January 12, 1988,
would be without any possible relevance to Local 1095 in
evaluating the grievants’ backpay claims. Under the cir-
cumstances, I shall not recommend, as a part of the remedial
order in this case, that Respondent furnish this information
to Local 1095, but instead shall recommend that jurisdiction
over the allegations concerning Respondent’s unlawful re-
fusal to furnish the information requested in the letters to Re-
spondent dated January 22, 1986, and January 12, 1988, be
retained for the limited purpose of entertaining an appro-
priate and timely motion for further consideration of the ap-
921TOYOTA OF BERKELEY
41 If I had chosen to evaluate the Charging Party’s request on its
merits, the following would have occurred. In the interest of due
process, I would have recessed the hearing and granted Attorneys
Watson-Tansey and Bobay a continuance so they would have an op-
portunity to fairly defend themselves against this new allegation of
misconduct. Thereafter, after hearing the evidence, I would have
then again recessed the hearing in order to decide whether the evi-
dence established that by assisting Attorney Bobay, Attorney Wat-
son-Tansey violated Sec. 102.119 of the Board’s Rules and Regula-
tions and, if so, whether an appropriate sanction for such a violation
would be to disqualify Attorney Bobay from continuing to represent
Respondent in this proceeding. If I reached that conclusion, I would
then have again recessed the hearing so as to afford Respondent an
opportunity to employ a new attorney.
propriate remedy for this violation of the Act on a proper
showing that the Court of Appeals for the Ninth Circuit has
sustained Local 1095’s appeals of the orders issued by Judge
J.P. Vukasin Jr. in Case C88-0520 on May 15, 1989, and
Case C88-3731 on October 30, 1989.
F. The Alleged Violation of Section 102.119 of the
Board’s Rules and Regulations
Section 102.119 of the Board’s Rules and Regulations en-
titled, ‘‘Prohibition of practice before Board of its former
Regional employees in Cases pending in Region before em-
ployment,’’ reads as follows:
No person who has been an employee of the Board and
attached to any of its Regional Offices shall engage in
practice before the Board or its agents in any respect
or in any capacity in connection with any case or pro-
ceeding which was pending in any Regional Office to
which he was attached during the time of his employ-
ment with the Board.
Toward the end of the second day of the hearing in this
case, which lasted 3 days, counsel for the Charging Party
learned that Attorney Nancy Watson-Tansey, who had been
assisting Respondent’s Attorney John Bobay in his represen-
tation of Respondent in connection with the instant unfair
labor practice proceeding, while employed by the Board as
an attorney assigned to its Regional Office for Region 20,
had been temporarily assigned to Region 32 for 3 months in
1987, during which time several of the charges involved in
this case were pending before that Regional Office. In view
of this, counsel for the Charging Party took the position that
by assisting Respondent’s Attorney in this proceeding, attor-
ney Watson-Tansey had engaged in conduct which violated
Section 102.119 of the Board’s Rules and Regulations and
that because of this Respondent’s Attorney John Bobay
should be disqualified from continuing to represent Respond-
ent. I refused to allow this matter to be litigated and it was
not in fact litigated.
I rejected the Charging Party’s request that Attorney
Bobay be disqualified from representing Respondent. The
reason for my ruling was that if in fact Attorney Watson-
Tansey had violated Section 102.119 by assisting Attorney
Bobay, the damage had already been done and Attorney
Bobay’s removal at this late date in the proceeding would
not undue the damage, but would only further delay the
Board’s disposition of the instant unfair labor practice
charges, which unfortunately had already been delayed for
several years.41
Counsel for the General Counsel did not join in the Charg-
ing Party’s request that, as the result of Attorney Watson-
Tansey’s assistance, Attorney Bobay be disqualified from
continuing to represent Respondent. However, in her
posthearing brief, counsel for the General Counsel takes the
position that I should find that by assisting Attorney Bobay,
in connection with this proceeding, that Attorney Watson-
Tansey violated Section 102.119 of the Board’s Rules and
Regulations and to remedy this violation, I should rec-
ommend that the Board ‘‘reprimand’’ her. I disagree.
The question of whether Attorney Watson-Tansey has vio-
lated Section 102.119 has not been litigated. She has not
been afforded an opportunity to defend herself against this
charge. Under the circumstances it would be premature to
conclude whether or not Section 102.119 has been violated
by her assistance to Attorney Bobay in connection with this
proceeding. I shall, however, recommend that the Board con-
duct an investigation into the General Counsel’s and the
Charging Party’s allegations that Attorney Watson-Tansey
violated Section 102.119 of the Board’s Rules and Regula-
tions by assisting Attorney Bobay in representing Respondent
in connection with this proceeding.
CONCLUSIONS OF LAW
1. Respondent violated Section 8(a)(5) and (1) of the Act
by unilaterally requiring its salespersons to pay more to Re-
spondent for damaging the demonstrators they rented from
Respondent, than the $250 limit set by Respondent’s collec-
tive-bargaining agreement with Local 1095, and by unilater-
ally requiring its salespersons to pay $20 a month into an in-
surance fund, in violation of a provision in its collective-bar-
gaining agreement with Local 1095 prohibiting any charges
to salespersons other than a $50 a month rental fee.
2. Respondent violated Section 8(a)(5) and (1) of the Act
by unilaterally, without affording Local 1095 an opportunity
to bargain, changing its salespersons’ existing terms and con-
ditions of employment, as follows: requiring them to pay for
damages, up to $500 per occurrence, incurred to company
owned vehicles they were driving; requiring them to attend
sales meetings on their scheduled days off; requiring them to
work on Sundays; prohibiting them from shopping trade-ins;
and discontinuing its policy of renting demonstrators to them.
3. Respondent violated Section 8(a)(5) and (1) of the Act
by refusing to furnish to Local 1095 the information re-
quested in Local 1095’s letters to Respondent dated January
22, 1986, September 16, 1987, and January 12, 1988.
4. On November 1, 1988, Local 1095 ceased to exist and
merged into Local 1179 and, as of November 1, 1988, Local
1179 succeeded to Local 1095’s October 17, 1988, certifi-
cation by the Board as the exclusive collective-bargaining
representative of all full-time and regular part-time employ-
ees engaged in the sales of new and used automobiles and
trucks employed by Respondent at Toyota of Berkeley, ex-
cluding all employees covered by other collective-bargaining
agreements, office clerical employees, guards’ and super-
visors as defined in the Act.
5. Respondent violated Section 8(a)(5) and (1) of the Act
by refusing to recognize and bargain with Local 1179 as the
922 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
42 283 NLRB 1173 (1987), interest on and after January 1, 1987,
shall be computed at the ‘‘short term Federal rate’’ for the under-
payment of taxes as set out in the 1986 amendment to 26 U.S.C.
§ 6621. Interest on amounts accrued prior to January 1, 1987 (the
effective date of the 1986 amendment to 26 U.S.C. § 6621), shall
be computed in accordance with Florida Steel Corp., 231 NLRB 651
(1977).
43 All of the above-described unilateral changes occurred, as found
supra, subsequent to the February 22, 1984 representation election
during which period Respondent acted at its peril in making unilat-
eral changes in its employees’ terms and conditions of employment.
The remainder of the illegal unilateral changes found in this deci-
sion, as I have found supra, occurred prior to Respondent’s Decem-
ber 13, 1983 lawful withdrawal of recognition. I therefore have not
recommended that those illegal unilateral changes be rescinded upon
request. Likewise, any possible backpay liability incurred by Re-
spondent for its unilateral conduct found herein, which occurred
prior to its December 13, 1983 withdrawal of recognition, would be
tolled as of December 13, 1983.
44 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.
exclusive bargaining representative of the employees in the
aforesaid certified unit.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
7. Respondent has not otherwise violated the Act.
REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices in violation of Section 8(a)(5) and (1) of
the Act, I shall recommend a remedial order requiring Re-
spondent to cease and desist and to take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent violated Section 8(a)(5) and
(1) of the Act by unilaterally changing its employees’ terms
and conditions of employment in several different respects,
I shall order Respondent to make whole the unit employees
for any losses suffered as a result of its unlawful unilateral
action, with interest thereon to be computed in the manner
set forth in New Horizons for the Retarded.42
Having found that Respondent violated Section 8(a)(5) and
(1) of the Act by unilaterally prohibiting its salespersons
from shopping trade-ins, unilaterally discontinuing its policy
of renting demonstrator motor vehicles to its salespersons,
and by unilaterally instituting a policy requiring its sales-
persons to pay for damages, up to $500 per occurrence, in-
curred to company owned vehicles they were driving, I shall
order Respondent, if requested by Local 1179, to reinstitute
the terms and conditions of employment that existed before
those particular unlawful unilateral changes.43
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act by refusing to recognize and bar-
gain with Local 1179, I shall recommend that it cease and
desist and to bargain on request with Local 1179 and, if an
understanding is reached, to embody the understanding in a
signed agreement.
To ensure that the employees are accorded the services of
their selected bargaining agent for the period provided by
law, I shall recommend that the initial period of the certifi-
cation be construed as beginning the date the Respondent be-
gins to bargain in good faith with Local 1179. Mar-Jac Poul-
try Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB
226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964); Burnett
Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350
F.2d 57 (10th Cir. 1965).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended44
ORDER
The Respondent, Southwick Group d/b/a Toyota of Berke-
ley, Berkeley, California, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain with United Food
and Commercial Workers Union, Local 1179, Automobile
Sales Division, as the exclusive bargaining representative of
the employees in the bargaining unit, and refusing to furnish
Local 1179 with information that is relevant and necessary
to its role as the exclusive bargaining representative of the
unit employees, and unilaterally changing the terms and con-
ditions of employment of the employees in the bargaining
unit without bargaining with Local 1179.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Recognize and, on request, bargain with Local 1179 as
the exclusive representative of the employees in the fol-
lowing appropriate unit on terms and conditions of employ-
ment, and if an understanding is reached, embody the under-
standing in a signed agreement:
All full-time and regular part-time employees engaged
in the sales of new and used automobiles and trucks
employed by Toyota of Berkeley at its Berkeley, Cali-
fornia facility; excluding all employees covered by
other collective-bargaining agreements, office clerical
employees, guards and supervisors as defined in the
Act.
(b) On request, furnish Local 1179 with the information
sought in its attorney’s letter to Respondent dated September
16, 1987.
(c) On request, reinstate the terms and conditions of em-
ployment that existed before it unilaterally prohibited the unit
employees from shopping trade-ins, unilaterally discontinued
its policy of renting demonstrator motor vehicles to the unit
employees, and unilaterally instituted a policy requiring the
unit employees to pay for damages, up to $500 per occur-
rence, incurred to company owned vehicles they were driv-
ing, and make whole the unit employees for any losses they
may have suffered as the result of these and the other illegal
unilateral changes found in this decision, with interest.
(d) 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 record necessary to analyze the
amount of backpay due under the terms of this Order.
923TOYOTA OF BERKELEY
45 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.’’
(e) Post at its facility in Berkeley, California, copies of the
attached notice marked ‘‘Appendix.’’45 Copies of the notice,
on forms provided by the Regional Director for Region 32,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint allegations not
specifically found are dismissed.
IT IS FURTHER ORDERED that jurisdiction over the allega-
tions concerning Respondent’s unlawful refusal to furnish the
information requested in the letters to Respondent dated Jan-
uary 22, 1986, and January 12, 1988, be retained for the lim-
ited purpose of entertaining an appropriate and timely motion
for further consideration of the appropriate remedy for this
violation of the Act on a proper showing that the Court of
Appeals for the Ninth Circuit has sustained Local 1095’s ap-
peals of the orders issued by Judge J. P. Vukasin Jr. in Case
C88-0520 on May 15, 1989, and Case C88-3731 on October
30, 1989.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to recognize and bargain with United
Food and Commercial Workers Union, Local 1179, Auto-
mobile Sales Division, as the exclusive bargaining represent-
ative of the employees in the bargaining unit, and refuse to
furnish Local 1179 with information that is relevant and nec-
essary to its role as the exclusive bargaining representative
of the unit employees, and unilaterally change the terms and
conditions of employment of the employees in the bargaining
unit without bargaining with Local 1179.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL recognize and, on request, bargain with Local
1179 as the exclusive representative of the employees in the
appropriate unit on terms and conditions of employment, and
if an understanding is reached, embody the understanding in
a signed agreement. The appropriate unit is:
All full-time and regular part-time employees engaged
in the sales of new and used automobiles and trucks
employed by Toyota of Berkeley at its Berkeley, Cali-
fornia facility; excluding all employees covered by
other collective-bargaining agreements, office clerical
employees, guards and supervisors as defined in the
Act.
WE WILL, on request, furnish Local 1179 with the infor-
mation sought in its attorney’s letter to us dated September
16, 1987.
WE WILL, on request, reinstate the terms and conditions of
employment that existed before we unilaterally prohibited the
unit employees from shopping trade-ins, unilaterally discon-
tinued our policy of renting demonstrator motor vehicles to
the unit employees, and unilaterally instituted a policy requir-
ing the unit employees to pay for damages, up to $500 per
occurrence, incurred to company owned vehicles they were
driving.
WE WILL make whole the unit employees for any losses
they may have suffered as a result of the above-described
and the other unlawful unilateral changes found in this pro-
ceeding, with interest.
SOUTHWICK GROUP D/B/A TOYOTA OF BERKELEY