Billion Motors, Inc., d/b/a Billion Oldsmobile-Toyota

National Labor Relations Board - Board Decisions

Mar 8, 1982

260 N.L.R.B. 745 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Billion Motors, Inc., d/b/a Billion Oldsmobile-
Toyota and Local No. 687, Allied Industrial
Workers, AFL-CIO. Cases 18-CA-6328 and
18-CA-6380
March 8, 1982
DECISION AND ORDER
BY' MEMBERS FANNING, JENKINS, AND)
ZIMMERMAN
On March 12, 1981, Administrative Law Judge
George F. McInerny issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,.'
and conclusions2 of the Administrative Law Judge
I Fn 22 of the Administrative Las Judge's Decision refers i the d1ate
of a letter outlining Respondent's contract proposals ais heing March 29.
1980. The correct date of the letter is October 29. 1979: swe hereby cor-
rect this inadvertent error
In the absence of exceptions thereto,. se hereb' adopt. pro fiirmd. the
Administrative Law Judge's finding that Respondent was not responsible
for the delay in the commencement of bargaining negotiations
Respondent has excepted to certain credibility findings made by the
Administrative L as Judge It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect Standard Drv Wiall Products
Inc.. 91 NLRB 544 (1950). enfd. 188 F2d 362 (3d Cir 1951) We have
carefully examined the record and find no basis for reversing his findings
2 Respondent has excepted lo the Admillistratise Lays Judge', coniclu-
sion that the strike herein, which began on July 25, 1979. was at its incep-
lion. and continued to he throughout its duration, an unfair labor practice
strike The record herein clearly establishes that the factors meoti valng
the employees to strike included Respondent's unlawful efforts to b'pass
the Union and bargain individually with its employees as "xell as Re-
spondent's unlawful diatribes against Stan Frank, the Union. and orga-
nized labor in general Moreover, it is clear that Respondenl's unlawful
bargaining tactics significantly prolonged the strike. Accordingly. we find
no merit in Respondent's exception
3 In his recommended Order, the Administrative Law Judge inadserl-
ently failed to include the Board's standard injunctive remeds for Re-
spondent's unfair labor practices. We hereby correct this Inadvertent
error
As a procedural matter. Respondent argues that the Board is without
power to order the reinstatement of those of its employees w ho engaged
in the unfair labor practice strike which began July 25. 1979. because the
General Counsel did not allege that Respondent had failed to reinstate
the striking employees and the matter was not raised at the hearing
herein. Inasmuch as reinstatement of unfair labor practice strikers is a re-
medial matter which need be neither pled nor litigated, we find no merit
in Respondent's argument; however, we hereby modify the Administra-
live Law Judge's recommended Order to provide for the Board', stand-
ard 5-day "grace period" following the striking employees' uncinditional
offers to return to work before commencing Respondeni's backpay oblih-
gation. See Drug Package Compan'. Inc., 228 NLRB 108 (1977) In this
regard, Members Fanning and Jenkins adhere to the views expressed in
their partial dissent in Drug Package. supra; hoswever, in the interest of
administrative efficiency, they are willing to follow the holding in that
matter as existing Board law
260 NLRB No. 99
and to adopt his recommended Order,3 as modified
herein. 4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Billion Motors, Inc., d/b/a Billion Oldsmobile-
Toyota, Sioux Falls, South Dakota, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
1. Insert the following as paragraph l(e):
"(e) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act."
2. Substitute the following for paragraph 2(c):
"(c) Make the striking employees whole for any
loss of earnings they may have suffered by reason
of the discrimination against them by paying them
backpay from and after the date 5 days after the
date when they unconditionally offered to return to
work, computed on a quarterly basis in the manner
established by the Board in F W. Woolworth Com-
pattny, 90 NLRB 289 (1950), and with interest there-
on computed in the manner prescribed in Florida
Steel Corporation, 231 NLRB 651 (1977).32"
3. Substitute the attached notice for that of the
Administrative Law Judge.
' Member Jenkins would calculate interest on hackpay due in accord-
ance with the formula set forth in his partial dissent in Olympic .edical
Corpioration. 250) NL RB 146 (1980)
APPENDIX
NotI-ICt: To EMPIOYEF.IS
POSTED) BY ORDER OF THE
NATIONAI. LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
745
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WI I NOT bargain individually with our
employees.
WE WII.. NOT demean and insult Local No.
687, Allied Industrial Workers, AFL-CIO, or
its representatives.
WE WILL NOT attempt to persuade our em-
ployees to abandon the Union.
WE WII I NOT refuse to bargain in good
faith with the Union. The bargaining unit is:
All service and body shop employees em-
ployed by us at our Sioux Falls, South
Dakota facility; excluding office workers,
shop superintendents, executive or supervi-
sory managers, parts department employees,
janitors, watchmen, guards and supervisors
as defined in the Act.
WEI WlI. NOI in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the free choice of the rights set forth in
this notice.
WI wll.I bargain in good faith with the
Union as the collective-bargaining representa-
tive of our employees.
Wi wii.l. offer all of the employees who
began a strike on July 25, 1979, immediate and
full reinstatement to their former jobs with us
or, if such jobs no longer exist, to substantially
equivalent jobs, without loss of seniority or
other rights, privileges, or benefits, and wE
wit.. make each of them whole, with interest,
for all money each of them lost from and after
the date 5 days after their unconditional offers
to return to work.
BIt. LION MOTORS, INC., D/B/A Bil-
I.ION O I)SMOBII I .- ToYOTA
DECISION
SrTAIIMINTi OF IH CASE
GEORGE F. MCINIERNY, Administrative Law Judge:
On July 12, 1979,. Local No. 687, Allied Industrial
Workers, AFL-CIO, herein referred to as the Union,
filed the charge in Case 18-CA-6328 alleging that Billion
Oldsmobile-Toyota (Billion Motors, Inc., d/b/a Billion
Oldsmobile-Toyota), herein referred to as the Company
or Respondent, 2 had bargained directly with its employ-
I All dates herein are in 1979 unless otherwise specified
2 Mr. Berens withdrew his appearance as counsel for Respondent
before being sworn as a w itness in this proceeding
ees, had consistently refused to meet with the designated
bargaining representative of its employees, and had uni-
laterally failed to honor the checkoff provisions in its
collective-bargaining agreement with the Union, all in
violation of Section 8(a)(1) of the National Labor Rela-
tions Act, as amended, 29 U.S.C. 151, el seq., herein re-
ferred to as the Act. On August 20 the Regional Direc-
tor for Region 18 of the National Labor Relations Board,
herein referred to as the Board, approved a previously
executed settlement by the terms of which the Respond-
ent, without admitting that it had violated the law, un-
dertook certain actions with respect to its employees and
the Union.
Subsequently, on August 24, the Union filed an addi-
tional charge in Case 18-CA-6380 alleging further and
additional violations of Section 8(a)(1) and (5) of the
Act. An investigation of these charges was made and, in
consideration of the evidence adduced in that investiga-
tion, the said Regional Director determined that the un-
dertakings set out in the settlement agreement of August
20 had been breached, and he withdrew and revoked his
approval of said agreement, ordering that it be vacated
and set aside under date of October 17.
On the same day the said Regional Director issued an
order consolidating Cases 18-CA-6328 and 18-CA-6380,
a consolidated complaint and notice of hearing. On Oc-
tober 25 Respondent filed an answer denying the com-
mission of any unfair labor practices.
Pursuant to notice, a hearing was held before me in
Sioux Falls, South Dakota, on March 18, 19, and 20 and
May 13, 1980, at which all parties were represented by
counsel and had the opportunity to present testimony
and documentary evidence, to examine and cross-exam-
ine witnesses, and to argue orally. Following the close of
the hearing counsel for Respondent and the General
Counsel submitted briefs, which have been carefully con-
sidered.
Upon the entire record of this case, including particu-
larly my observation of the witnesses and their demea-
nor, I make the following:
FINDINGS oi FACT
I. Fill BUSINEISS 01: RESPONI)I NT
The Respondent is a South Dakota corporation having
its office and place of business in the city of Sioux Falls
where it is engaged in the retail sale and service of new
and used automobiles. Respondent annually derives in
the course and conduct of its business gross revenues in
excess of $500,000, and annually purchases and receives
goods and materials valued at over $50,000 directly from
points outside the State of South Dakota. The complaint
alleges, the answer admits, and I find that Respondent is
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
11. HiE I ABOR ORGANIZAT'ION INVOLVED
The complaint alleges, the answer admits, and I find
that Local 687, Allied Industrial Workers, AFL-CIO, is
a labor organization within the meaning of Section 2(5)
of the Act.
746
BILLION OLDSMOBILE-TOYOTA
Ill. THE AL I.EGFD UNFAIR L.AHOR PRACTICES
A. Background
The Company and the Union had had a collective-bar-
gaining relationship extending back to 1970. During this
time, although the evidence indicates that there was a
strike in 1970, the parties enjoyed good relations. They
had evolved an annual negotiating procedure which, al-
though casual and informal, apparently suited them.
Each year when the contract expired, employees would
meet and formulate proposals for the forthcoming nego-
tiations. These would then be given to the Union's busi-
ness agent, Stan Frank,3 who would have them typed
and sent to the Company. Sometime later, the evidence
on this point indicated that it would be 2 or 3 days up to
a month, members of the Union's negotiating committee
would approach the Company through David Billion,
the Company's president since 1973, and request a meet-
ing. David Billion would then meet with the negotiating
committee, composed of representatives of commission
mechanics, hourly paid mechanics, and body shop em-
ployees, together with Frank, at the Sioux Falls Labor
Temple, and negotiate the new contract.
Under this practice negotiations would sometimes
move slowly, and there is evidence that no agreement
was reached until August or September, but eventually
each year agreement was reached. The parties agreed, in
any event, that each new contract would be effective
when agreed upon, and there were no provisions for re-
troactivity. Apparently May 15 was the expiration date,
whenever the contract was signed.
In the summer of 1978 the Union organized a unit of
employees at Billion Chrysler-Plymouth-Datsun, 4 was
recognized by management, and commenced negotia-
tions. There were problems with these negotiations and
on October 5, 1978, the Union filed a charge against the
Company in Case 18-CA-6003. The charge was dis-
missed by the Regional Director for Region 18 on No-
vember 30, 1978, and the record here does not show
whether an appeal of this dismissal was ever filed. The
record does show that whether as the result of the diffi-
culties in negotiations, or the charge filed by the Union,
the Chrysler-Plymouth-Datsun dealership was, by No-
vember 30, 1978, represented by Attorney Kelvin C.
Berens.
These problems at the other dealership were upsetting
to Stan Frank, who, sometime in February 1979, posted
a notice in the Sioux Falls Labor Temple urging people
not to do business with the Billions at their Chrysler-
Plymouth-Datsun location. In turn, as will be detailed
later, David Billion, and to a lesser extent his father,
Henry, were furious at what they considered "false
3 Local No 687 is an amalgamated local, representing employees at
several locations including an International Harsester plant in Sioux
Falls. Frank did not work for Respondent, but did at times work for
other employers and at other times worked full time as a business ageni
4 The precise relationship of this dealership Io the Oldsmobile-Toyota
dealership was not made clear on Ihe record It is owned by the Billion
family with day-to-day management in the hands of Henry Tillion.
David's father, but in stiew' of David's reaction to events Ihere, he un-
doubtedly has considerable interest in the Chrysler agency, which is re-
ferred to the record as the "other place" or "other dealership."
charges." and the expense the charges had cost them.
and at the boycott notice. 5
B. The Beginning of Negotiations
This, then, was the situation on May 15, 1979, when
the collective-bargaining agreement expired at Billion
Oldsmobile-Toyota.
On May 4 the employees gathered in the Company's
body shop after hours and drew up a list of 13 proposals
for the coming contract year. These were transmitted to
Stan Frank who had them typed and then, about May
19, sent to David Billion.
By June 1 the Union's negotiating committee (which
was composed of Gerald Buskohl, the shop steward,
Doug Wenzel, representing the commission mechanics,
Steve Frager, representing the hourly paid employees,
and Randy Risch, representing the body shop) became
concerned because they had not heard from David Bil-
lion. Accordingly, it was decided that they would go in
to see him.
On June 5 Buskohl was on vacation, but the other
three, Wenzel, Frager, and Risch went to see David Bil-
lion. According to Frager, the only employee who testi-
fied about this meeting, Billion said he would not negoti-
ate with them because of Stan Frank, and he did not
want anything to do with organized labor because he
went through an ordeal at the other dealership with Stan
and it had cost him a lot of money. Therefore, he did not
want anything more to do with Stan. Billion was asked if
they could have another union representative come in to
replace Frank. Billion replied that no matter who they
brought in it would be the same. It did not matter who
was there, if organized labor was present, he would not
be. Billion added that he thought they could settle things
among themselves and that they did not need outside in-
volvement. He stated that he had nothing against them
but he would have nothing to do with Stan Frank.
Billion then added that if they went out on strike it
would have a "totally different outcome," apparently in
reference to a previous strike in 1970.
David Billion's version of this incident was quite dif-
ferent. He recalled the visit, but he stated that he told
the employees on June 5 that, because Stan Frank had
hired outside counsel, and he, David Billion, was an
"amateur," he did not think he should be involved in
matters that would be over his head. He felt he was deal-
ing with professionals and he should have professionals
dealing for him.
I did not find David Billion to be a credible witness.
In this instance, after relating these reasons which he
gave to these employees on June 5, he went on to de-
scribe a meeting on June 6 with the same employees and
Buskohl in entirely different terms, indeed, terms consist-
ent more with Frager's account of the June 5 meeting
than Billion's own. Further, David Billion exhibited a
poor memory, admittedly confusing one meeting with
others, and his general denials of events and words alleg-
. David Bllion als,o testified Ihat he was angry at Stan Frank because
of some "polhtcal" thing they were both Iisol.ed In hul this potin was
not elaborated I do not think Ihis actuall) had much to do wiih the
e vrlIs if his case
747
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
edly used by him carried no great weight with me be-
cause they were in many instances elicited by leading
questions or suggestions. Thus, I do not credit much of
Billion's testimony on material issues in this case, recog-
nizing that it may well be that his poor memory, rather
than a conscious attempt to deceive, is to blame.
Frager, on the other hand, I found to be a candid and
credible witness. I credit his version of the June 5 meet-
ing as outlined above despite the lack of corroboration.
After the meeting was over Frager did not know what
to do, so he called Buskohl, the shop steward. Buskohl
arranged a meeting of the committee the next morning at
the Labor Temple, and it was decided that Buskohl
would accompany the committee back to David Billion's
office. Both Buskohl and Frager testified about this meet-
ing, and their stories basically agree.6 The meeting
opened with Buskohl asking if Billion was ready to nego-
tiate. He replied that he was not negotiating this year,
and that he had hired an attorney. Buskohl asked why
and Billion said he would not sit down at a bargaining
table with Frank because Stan Frank is a "no-good
SOB" and Billion did not trust him. Further, Frank was
out to get Billion for what happened at the other facility.
Buskohl persisted, saying that they had to sit down and
get a negotiations date. Billion then said that he did not
know why the employees had to pay union dues, that
they could draw up a company handbook and it would
be just as binding as a union contract. Billion then talked
about how Stan Frank had cost him $8,000 at the other
facility and repeated that Stan was out to get him. Un-
daunted, Buskohl again asked about a date. Billion said
that Frank knew who his lawyer was and that Frank
should contact him. Buskohl then asked for the lawyer's
address and telephone number. Billion wrote it out and
gave it to Buskohl and the meeting concluded with Bil-
lion telling the employees that they had to make up their
minds who they were working for, Billion or Stan
Frank, and that they had to account to him and not to
Stan Frank.
David Billion's version of this meeting agrees with
that of Buskohl and Frager insofar as Billion admitted
that he was not going to negotiate with Stan Frank, and
he had retained Berens as his attorney for that purpose.
However, in response to what I regard as suggestions
from his counsel, he denied that he referred to Frank as
an SOB; that he offered to implement an employee hand-
book; that the employees would be better off without
Stan Frank; or that it would be in the interest of every-
one if there were no union at the Oldsmobile-Toyota
dealership. I do not credit these denials and I find that
the conversation occurred as related by Buskohl and
Frager.
After the meeting Buskohl relayed Berens' address and
telephone number to Frank. The latter, however, made
no attempt to contact Berens. Frank's theory, as ex-
pressed to David Billion, and in his testimony at the
hearing, was that he had fulfilled his obligation to the ne-
gotiation process by transcribing and forwarding the em-
ployees' proposals to David Billion, and that he had no
{ Frager was, of course, in error when he said that "Slan' was at this
meeting, but I will not discredit his testimony on that account.
further obligation to seek out Billion's lawyer. On the
contrary, Frank's view was that Berens knew him, knew
his address, and that Berens should contact him to com-
mence negotiations.
Despite the urgency shown by the employees' two
meetings with David Billion, neither Frank, for the
reason noted above, nor Billion made any attempt to
contact Berens during the month of June. Then, on June
27, the employee negotiating committee met with Frank
and decided that they would all go and confront David
Billion again. They went to Billion's office, "barging in"
in Billion's words, and Frank asked Billion if he was pre-
pared to negotiate. Billion again stated that he was not
going to negotiate that year. He told Frank that Frank
had the Company attorney's number and that Frank
could contact Berens if he wanted to set a date for nego-
tiations. Frank replied that Billion had hired the attor-
ney, Frank had sent Billion the proposal, and that it was
up to Billion to have the attorney contact Frank. Billion
replied that he did not like Frank, or trust him, that he
had been totally unfair with him at the "other place," the
Chrysler-Plymouth-Datsun dealership, and that he would
never sit across the bargaining table with Frank. Billion
and Frank continued to argue about the other dealership
and the meeting broke up.
Again, no action was taken by either Billion or Frank
to communicate with Berens to initiate the negotiations.
On July 3, Buskohl testified that David approached
him and said that the Company was thinking about
giving a raise to the hourly paid employees because it
looked like the negotiations would be dragged out for a
long time. Buskohl suggested that the thing to do was to
sit down with the committee and discuss it. Billion re-
plied that in no way was this negotiating and what he
was saying was not negotiations. He then said that he
would go to his office and decide how much the em-
ployees were entitled to receive.'
Later that day David Billion called Frager into his
office. Billion began by saying that it was time the
hourly paid employees "deserved" a raise. Billion stated
that by no means was he bargaining individually, and
wages would be discussed at the bargaining table, but he
thought negotiations would be long and drawnout. They
deserved a raise, and if it was all right with Stan Frank
Frager would get a 60-cent increase. Billion added that if
Frank really cared about Frager he would not object to
this raise, but if Frank did object it would show what he
cared about them. If they did not get the raise in those
circumstances it would be the fault of the Union because
the Union had the final say over whether they got the
raise or not. Billion then went on to mention that Mike
Wenzel's "labor," a reference to productivity, was not as
high as Frager's and that was one "kind of tough thing
about the contract" that if Frager turned out more labor
it would be easier to give him a little higher rate than
some one who did not turn out as much labor. David
Billion did not testify about this meeting and since I
found Frager to be a credible witness I find that the con-
versation took place as recorded above.
7The hourly paid employees were Mike Wenzel and Frager Billion's
version of this meeting is suhstantially the same as [3uskohl's
748
BII.I.ION ()I.DSMO()II.E-TOYOTA
On July 13 David Billion called Mike Wenzel into his
office, telling him that he wanted to talk not as contract
negotiations or a contract offer, and that Wenzel was
free to get up and walk out at any time. Having said this,
Billion then told Wenzel that he was having a hard time
getting hold of Frank to set up contract negotiations,
that Frank was not answering Billion's letters because
Frank had a personal grudge against him. Billion went
on to say that he did not think contract negotiations
would be over for a long time. He said that he did not
think Stan Frank really cared about the employees; that
all he wanted to do was to "go back to court" with Bil-
lion because Billion got out of the charges against him at
the other dealership. He then described the charges as
false, called Stan Frank a SOB, and said that they could
get along better without Frank if David Billion could
just talk to the "guys in the shop," but that was their de-
cision to make. After all of this Billion got out Wenzel's
labor sheets. He again stated that negotiations were
going to take a long time, and told Wenzel that he
would like to give him a raise now. The raise would be
60 cents, from $4.40 per hour to $5. Billion then told
Wenzel that he was sending a letter to Stan Frank about
the raise, and if it was not acceptable to the Union he
would cancel the raise. Wenzel then read the letter, and
the meeting ended.
David Billion testified about this meeting but omitted
to mention anything but the beginning and the end,
eliminating any references to long, drawn out negotia-
tions, or diatribes against Stan Frank. I credit Wenzel's
version of the meeting since I found him to be candid
and credible.
David Billion also testified that on July 12 he had
called Stan Frank and informed him of what he intended
to do about the raises. Frank replied that he should put it
in writing. This, according to David Billion, was the
reason he composed the letter he showed to Wenzel.
The letter was mailed on July 13 and on July 14 David
Billion left for a vacation in Minnesota, leaving his
father, Henry Billion, in charge of things at the Oldsmo-
bile-Toyota dealership.
In the meantime, the employees had met at the Labor
Temple on July 11. They had been informed of the wage
offers which had been or were to be made to the hourly
paid employees and they agreed that the offer would be
rejected." Thus, when David Billion's letter of July 13
was received, it was answered by Stan Frank on July 16
with a refusal to accept the increases.
To conclude this episode, Henry Billion called Frager
and Wenzel into David's office and showed them the
July 16 letter from Frank. According to Wenzel, Henry
Billion asked them if they had any part in turning down
the raise. They said they had and that everyone agreed
that this should be done through the bargaining commit-
tee. Henry said that he was sorry it happened, although
he was not really aware of the situation. He said he was
trying to get hold of Berens, and also trying to get hold
of David, but then went on to describe Stan Frank as a
SOB and to say that he did not like Stan Frank. Accord-
8 On July 12, the charge in Case 18-CA h328 was filed by the Union's
counsel.
ing to Frager, Henry added that he did not hold any
grudges against Frank. Henry again repeated that he was
sorry, and this meeting ended. Henry Billion did not tes-
tify as to this meeting, and I base my findings on the
credible testimnny of Frager and Wenzel.
Also on July 17 Henry Billion came up to Buskohl and
asked him to speak to David, who was calling from Min-
nesota. David asked Buskohl what was going on. Bus-
kohl replied that nothing was going on, and they just
wanted to get negotiations started or get a date. David
said that his attorney was trying to get hold of Stan
Frank and could not do so. Buskohl, always alert, sug-
gested that the attorney could get in touch with him.
David then asked if the employees were going to strike.
Buskohl reassured him that there was no talk about a
strike but they had to have a negotiation date. David
then said, "Well, I can see it now, Stan has already filed
charges with the NLRB, and there goes another $5,000
down the drain. ' Stan is out to get me." Buskohl again
reassured David that no one was out to get him, but per-
sisted in saying that all they wanted was a negotiation
date. David concluded by asking Buskohl not to strike,
to give him a few days, and promising to get back to
him.
David Billion testified only in general terms about this
conversation, and did not deny the substance of the con-
versation as reported by Buskohl. Buskohl was a com-
pletely credible witness. His memory was excellent and,
since he was on the witness stand for an entire day, he
was called upon to recall, and did recall, the entire histo-
ry of this case. Two minor slip-ups noted by Respondent
in its brief are not sufficient, given the volume and com-
plexity of Buskohl's testimony, to impair his credibility. I
thus find that the conversation occurred as described by
Buskohl.
After this Buskohl asked Henry Billion to set up a
meeting, but Henry declined. Buskohl called Frank, who
suggested that Buskohl ask Henry to meet the negotiat-
ing committee at the Labor Temple on the next morning,
July 18. Henry again refused, but said that he would
meet with anyone who wanted to talk to him in his
office the next morning.
On July 18 all of Respondent's employees met at the
Labor Temple at 7:30 a.m. and voted, unanimously, to
strike if they did not get an answer on setting up a nego-
tiating session. In addition Buskohl testified, and I find,
that the individual bargaining by David Billion with
Wenzel and Frager was discussed and formed an addi-
tional reason for the strike vote.
After taking the strike vote, the employees went to the
Oldsmobile-Toyota dealership. The bargaining commit-
tee and Stan Frank went in to talk to Henry Billion and
the other employees remained on the sidewalk in front of
the premises. Henry explained to them that he had put in
a call to Berens and would get back to them with a defi-
nite date as soon as he heard from Berens. Apparently
satisfied with these assurances, the committee left the
office and all of the employees went to work.
S So'me hat of an underestimate, I would guess, in view of subsequent
developments
749
DECISIO)NS OF NATI()NAL LABOR RELATIONS BOARD
Up to this point it is undisputed that Stan Frank,
acting in accordance with past practice and his personal
view of the relative responsibility of the parties here, had
refused to contact Company Attorney Berens. On July
18, Henry Billion apparently spoke on the telephone to
Berens. The latter responded by sending a mailgram to
Frank. This mailgram was introduced into evidence and
it is a significant document. The mailgram states that
Berens had "attempted to contact [Frank] since early
June." There is no other evidence in the record that
Berens had made any effort to contact Frank before the
transmittal of this mailgram. Indeed, Berens himself testi-
fied at the hearing that the first contact he had with
Frank was the July 19 mailgram. Berens sent the mail-
gram as a result of a conversation he had the day before
with Henry Billion, who had asked Berens to try to con-
tact Frank. Thus, I find that Berens was not truthful
either in the mailgram to Stan Frank, or in his testimony
in this proceeding. In either case I am left with serious
doubts about Berens' credibility.
The mailgram also indicates that Berens was aware of
the individual bargaining, and of the unfair labor practice
charge in Case 18-CA-6328 which had been filed on
July 12. Further, comments by Berens in the mailgram
about a strike and the replacement of economic strikers
indicate that word of the July 18 strike vote had filtered
back to management and thence to Berens. These state-
ments make it clear that Berens had talked to someone
from management, probably Henry Billion, but there is
no indication from this that any more substantial matters,
such as the bargaining position to be taken by the Com-
pany, were discussed. The mailgram concluded by advis-
ing Frank that Berens would not be available the next
week.
On receiving the mailgram Stan Frank replied not by
telephone, or mailgram, but by a letter in which he de-
manded that negotiations begin no later than July 25.
Frank suggested no dates for a meeting and did not men-
tion the fact that a strike vote had been taken or, signifi-
cantly, that a strike would take place if the July 25 dead-
line was not met.' ° He did, however, state that he had
mentioned Berens' July 19 mailgram to the negotiating
committee. This statement, while repeated in Frank's tes-
timony, was not corroborated, and was in fact denied by
the employee witnesses who testified. For this reason, as
well as others discussed below, I have serious doubts as
to Frank's credibility on critical issues.
On July 21, Berens sent Frank another mailgram. He
obviously had not received Frank's July 20 letter, but
had been in communication with someone from the Fed-
eral Mediation and Conciliation Service. Berens again
raised the prospect of a strike, and permanent replace-
ment of the employees, pointing out the risk of a strike
in these circumstances. He concluded by again urging
Frank to contact him and set up negotiations.
Frank made no reply to this second mailgram. Then,
on July 25, the employees returned once more to the
Labor Temple to consider their situation. Frager testified
'O In view of the events of July 17. 18, and 19, outlined above, I think
it is reasonable to infer that the Union had decided to implement the no-
strike vote on July 25 if there was no action on its demand for meeting
dates
that they wanted to assure themselves that they had to
strike as a last resort. Buskohl stated that all agreed that
they had given Berens enough time to contact Henry
Billion to set up a date. I So they proceeded to set up
picket schedules and proceeded to Respondent's premises
where they began the strike and set up picket lines.
After the picket lines had been established Henry Bil-
lion came out and told Buskohl and the others that he
was trying to contact Berens. Henry asked if they were
going to stay on the picket line. They assured him that
they were until they had a date for a meeting. On the
morning of the next day, July 26, Henry Billion again
came out to the picket line and told the striking employ-
ees that Berens was coming into town that morning to
meet with the Union. The meeting was set up for 9:30
a.m. at the Howard Johnson motel in Sioux Falls.
C. The Negotiations
Including the first meeting on July 26, 1979, and the
last, on March 13, 1980, the parties held a total of nine
bargaining sessions. Meetings took place on July 26,
August 1, 7, and 20, September 6, 14, and 28, October
19, 1979, and March 13, 1980.'2 Stan Frank acted as the
Union's chief spokesman, assisted by the employee bar-
gaining committee, Buskohl, Frager, Risch and Wenzel.
On one occasion Attorney Harry H. Smith attended a
meeting, but there is no record of what contribution he
made and, at the October 19 meeting, a Federal mediator
was present. Berens was the sole representative of the
Company at all but one of the meetings, where his asso-
ciate Terry Schraeder sat in for him.
Evidence on the content of the meetings was present-
ed by the General Counsel in the form of extended testi-
mony from Buskohl and Frank. The Respondent called
Berens": as a witness. However, Berens did not testify as
to the substance of what went on at the meetings, but
identified a series of documents, written in longhand, as
notes which he had made t 4 during the bargaining ses-
sions. Respondent then offered these notes as substantive
evidence in lieu of direct testimony on the matters cov-
ered by Berens himself. The General Counsel objected to
the admission of these notes, but I admitted them on the
grounds that they constituted business records regularly
kept by Berens. I reaffirm that ruling now. Allis-
' Crediting the testimony of Buskohl and Frager, and discrediting
that of Frank I find that Frank had not told the employees of the two
mailgrams he had received from Berens on July 19 and 21.
12 There was an additional meeting on April 22, 1980, at which the
parties discussed the signing of a contract That meeting is not really ma-
terial to the issues here.
1a The General Counsel objected to the appearance of Berens as a wit-
ness in the light of my prior ruling excluding witnesses from the hearing
room. There is authority for the proposition that the rule may be inappli-
cable to arn attorney for a party, even though that party may be repre-
sented by other counsel, Hughes v. State, 126 Tenn. 40, 148 S.W. 543.
Further, the right of a party to counsel of its choice cannot lightly be set
aside, Powell v. Alabama, 287 U.S 45 (1932). To have excluded Berens,
even though he stated at the beginning of the hearing that he would
probably be a witness, would, in my opinion, have seriously prejudiced
Respondent in the presentation of its case See, generally, 2d Am. Jur.,
Trials §52, §62
14 In one instance Berens' partner. Schraeder, had sat in and made the
notes
750
II.I ION OIDSMOBIIEF-TOY()TA
Chalmers Manufacturing Company, 179 NLRB 1
(1967).'5
In determining what occurred at the bargaining ses-
sions, I have relied primarily on the testimony of Gerald
Buskohl. As noted above I found Buskohl to be a thor-
oughly credible witness, with remarkable powers of
recall. His descriptions of the many sessions he attended
were logical and in accordance with the inherent prob-
abilities of the situation. Frank, on the other hand,
showed a poor memory and an obstinacy which mani-
fested itself in a number of situations where he almost re-
fused to answer the questions put to him. I found him an
unreliable witness, not for lack of candor, but through
his poor memory and his stubborn insistence in answer-
ing the question he chose to answer, not the one which
was asked.
With regard to Berens, I have already noted the dis-
crepancy between his July 19 mailgram and his testimo-
ny at the hearing. In addition, Berens did not impress me
as a witness. I found his answers shifting and evasive on
the matters of whether his notes reflected that he had
made some offers on July 26, and, particularly, his pro-
fessed surprise that the union committee did not want to
discuss the August 7 wage offer. Berens' demeanor like-
wise did not impress me. For these reasons I do not
credit Berens in substantive areas, where his testimony
differs from that of Buskohl. I find Berens' notes subject
to the same qualification and I do not credit those notes
where their substance differs from Buskohl's testimony
I do not think I digress too much if I take some time
at this point to discuss Berens' style of negotiations.
There is only one mention of this in the complaint, but it
is apparent from the amount of testimony that Berens'
style and mannerisms did have an impact on the union
committee. Buskohl testified that Berens' usual practice,
or style, involved a late arrival, slamming his briefcase
down on the table, then opening it and spending the next
few minutes glancing through airline schedules. Buskohl
also noted Berens' habit of taking laborious and copious
notes during negotiations, halting all discussion until he
was finished, sitting and staring silently for long periods,
advising the employees to continue their strike, caution-
ing them about sunburn, and, at the conclusion of several
sessions, telling the employees to "have a good day."
In any profession which demands skills in communica-
tion practitioners tend to develop a style or manner in
approaching their tasks. It is apparent from Buskohl's im-
pressions of Berens that the latter, in his brief time as a
labor negotiator, has developed such a style. However,
there is no evidence that these affectations intruded
themselves into the process to the point where form af-
fected substance. I cannot find that this aspect of the ne-
gotiations, which certainly impressed, if it did not annoy,
the union negotiators, had any real influence on the sub-
stantive course of negotiations.
The complaint does allege that Berens failed to attend
a scheduled meeting session on August 14. Both Buskohl
and Frank testified that Berens had in fact missed that
5 In so ruling I note that the notes were in the General Counsel's pos-
session from at least the beginning of the hearing in March until Berens
testified on May 1.3, 1980
scheduled meeting." Berens did not testify on the issue,
but the parties did place in evidence a mailgram from
Berens to Frank dated August 15 in which Berens stated
that he had attempted to reach Frank by telephone on
August 14 "for the purpose of setting up negotiations."
and requesting a call. Berens' notes are not helpful since
there is no mention in the notes for August 7 of a future
meeting. Frank testified that there was a meeting sched-
uled for August 14, and that he went out to the Howard
Johnson motel that evening to attend, but Berens did not
appear. I do not rely on Frank's testimony because of his
poor memory, but Buskohl also testified that there was a
meeting scheduled for August 14. Thus, relying on Bus-
kohl, I find that there was a meeting set for that day.
However, it also appears that it was Berens' practice.
along with the other mannerisms noted above, to set ten-
tative meeting dates, and then confirm those dates later.
This would give Berens more freedom to maintain his
extensive and geographically wide-ranging practice. Bus-
kohl admitted that he knew about this practice. If in fact
the practice was followed in this instance, Berens should
have communicated with Frank no later than August 14
in order to cancel the tentative meeting for that evening.
The mailgram of August 15 says that Berens did just
that. This, then, presents the question of whether I be-
lieve that the August 15 mailgram accurately describes
what happened on August 14. 1 have already found that
Berens' mailgram of July 19 contained statements which
were not true. Similarly, in this situation, I find that
Berens had not tried six times to locate Frank on August
14, and I find that Berens missed the meeting, although I
cannot say whether this was intentional or merely an
error.
Turning now to the actual negotiations, I do not feel
that it is necessary to describe in detail all of the bargain-
ing sessions. It is true that there were 13 items in the
Union's bargaining agenda, and that both sides bargained
hard on many of those issues. In the end, though, there
was really only one issue which kept the parties apart for
so long, and which furnishes the basis for the allegations
in the complaint that the Company bargained in bad
faith. That issue is the method for computing the em-
ployees' wages.
In order to understand this issue it is necessary to ex-
amine the situation as it existed before negotiations
began. Respondent's operation is the only unionized shop
in Sioux Falls, indeed, in the whole State of South
Dakota. Over the years, presumably through negotia-
tions, Respondent paid its mechanics and bodymen on a
commission basis; ?7 that is, the employees would receive
a percentage of the labor costs charged to customers.
With some variations not material here, the commission
rate under the contract which expired on May 15 was
47.5 percent. This figure was converted to dollars by
using two factors. The first was the shop rate, the
1R They also testified that Berens missed a scheduled meeting on
August 6. hbut there is no allegation in the complaint concerning ihat
meeting. 1 he evidence on this is so imprecise that I can make no finding
on the August 6 incident.
7 There sas also an issue over wages for hourly paid employees hut
in my 'i0e this would have settled without erilous problems if it were
not for the issue of sages foir employees on commission
751
)-ECISIONS ()F NATIONALI IABO1R RELATIONS 13)ARD
amount charged to customers, which up to the time of
the strike was $18 per hour. The second factor was the
computation of the time necessary to do a given job.
This computation was based on rates set out in various
service manuals. Work done on new cars during the
period they were under manufacturer's warranty was
computed in conformity to schedules contained in a book
published by the manufacturer, referred to as the factory
book. Since the cost of some of the work done by the
factory book had to be absorbed by the manufacturer
under the terms of the warranty, and because the cars
were new, the rates were relatively low. The rates for
cars other than Oldsmobile and Toyotas, and for those
Oldsmobiles and Toyotas which were older and no
longer subject to warranties, were computed on the basis
of other books, including one published by someone
named Mitchell. The rates in these were somewhat
higher than those in the factory book.
The advantage to both the Company and the employ-
ees under this system was that it rewarded enterprise by
placing a premium on fast, efficient work. 1The books
placed a time value on any job to be done. If the em-
ployee could do the job in less time, he and the Compa-
ny would share in the excess profit resulting front the
performance in less than the time estimated in the book.
The Union proposed in the 1979 negotiations to raise
the percentage paid to mechanics and body men from
the existing 47.5 percent to 50 percent. On July 26
Berens arrived about 30 minutes late for his appointment
with Frank and the employee bargaining committee at
the Howard Johnson motel. As described by Buskohl, he
slammed his briefcase down on the table, opened it and
spent some time looking at an airline schedule. Berens
then asked Frank for copies of the expired contract and
the new proposals. Frank supplied them and Berens
looked them over.
According to the testimony of Buskohl and Frank,
Berens then proceeded to go down through the list of 13
proposals, finally adding a 14th of his own, that the con-
tract be for a term of 3 years. With regard to the first
two items, wherein the Union had asked for an increase
in commission rates from 47.5 percent to 50 percent for
mechanics and bodymen, Berens stated that the Compa-
ny would pay 48 percent. In his own testimony, Berens
specifically denied that he made such a proposal. He
stated that he made no proposal on wages on July 26,
advising the employees that he had to discuss these issues
with David Billion before coming in with a proposal.
Berens' notes of the July 26 meeting corroborate this.
In resolving this direct conflict I have considered the
following factors: First, it is unlikely that the upcoming
negotiations were discussed by Berens and David Billion.
Both testified that they had discussed wages before July
26, but both were so vague and imprecise about what
was discussed, or when or how, that I do not believe
them. There is no evidence that Berens was in Sioux
Falls at any time in the spring and summer of 1979. The
fact that Berens asked for and received copies of the
contract and the proposals at the July 26 meeting is fur-
ther evidence that he was unaware of the situation.
Second, despite the testimony as to Berens' lengthy and
laborious note taking described at length by Buskohl and
Frank, Berens' notes for July 26 are sketchy and abbrevi-
ated, running only a page and a half, and giving the
merest outline of what transpired at the meeting as de-
scribed by Buskohl and Frank. And, third, I have al-
ready noted my doubts on Berens' credibility based on
the July 19 mailgram. A tendency for self-justification,
beginning with the July 19 mailgram, runs through all of
the correspondence addressed by Berens to Frank
throughout this period, along with a lot of preaching and
subtle and not so subtle insults. 18
Thus, I credit the version of the July 26 offer given by
Buskohl and Frank, and I do not credit Berens' denial.
At the next meeting Berens rejected the Union's wage
proposal. Apparently, nothing further was said about the
48 percent, but it is clear from Buskohl's testimony that
the Company's position was outright rejection of any in-
crease in wages. There was considerable discussion on
other items, with some agreements reached.
The next meeting took place on August 7. Berens
began by discussing the settlement agreement in Case 18-
CA-6328. Berens talked about work rules and picketing
problems under South Dakota laws. He then announced
a new proposal on wages. The Company would change
the commission system to a system where there would
be four categories of mechanics. Category A would re-
ceive $8 per hour, category B, $7, and two other catego-
ries were at lower rates. Of the present mechanics only
Buskohl and Jells Larson would be paid at the A rate,
the others in lower categories. As justification for this
proposal Berens stated that the Company had to be com-
petitive with other dealers in the area.
According to Berens' notes for August 7 his proposal
was for a "flat hourly rate" with four categories, A to be
paid $8; B, $6.75; C, $5.50; and D, $4.50. However, it ap-
pears from the evidence that he gave no explanation of
what he meant. There is in this trade a considerable dif-
ference between a "flat hourly rate," and an "hourly
rate" based on clock hours. In the former, employees are
paid the assigned rate, but the hours they are paid for are
computed on the "books" just as under the commission
system described above. Under the clock hour system,
employees would be paid the assigned rate only for
hours actually worked.
Since there had been no explanation of this proposal
the employees believed that Berens was proposing a
clock hour system. Under this Buskohl, as an A category
mechanic, would receive $320 for a 40-hour week,
whereas under the previous system he had averaged $510
for the same 40 hours. Others who were to be placed in
lower categories would lose even more. The proposal
left the employees in a state of shock. Frank stated that
the employees were not interested in an hourly scale,
and the meeting adjourned until August 1 4 .'9
The parties next met on August 20.20 There was some
more talk about the legality of the Union's picket line,
's I would be remiss if I did not note that Frank suffered from the
same tendencies
I9 See discussion above on that meeting.
21' Ai this meeting, for the first time, Berens' notes show an attempt to
capture the words of the parties almost verbatim.
752
BILLION OLDSMOBILE-TOYOTA
and Berens again advised the Union of the Company's
desire to implement a new set of work rules. Berens then
presented what he described as the Company's "final
offer." He indicated that the Company would be willing
to negotiate at any time in the future but, if the Union
did not accept the proposal, in its entirety, by August 29,
the Company intended to implement the proposal on
September 1.
The offer with regard to wages was described in
Berens' notes as follows: "proposes a 4 classification me-
chanic system w/ an hourly rate as follows," then listing
four categories; A at $8.50; B at $7.50; C at $6.25; and D
at $4.50. Buskohl and Larson were to be A mechanics,
the rest, B. Body shop rates for all employees would be
$8. The proposal called for increases in the second and
third years.
At this point the Union caucused and came out with
some revisions of its proposals. All of these were reject-
ed where they did not agree with Berens' "final offer."
Berens then asked Frank if he had any further changes
to make, or if he intended to make any. Frank replied no
in each case. Berens went on to state that he felt they
were at impasse, adding that if Frank had anything
"meaningful" to discuss, to contact him.
At this time, the employees still thought Berens was
proposing a clock hour system. Berens certainly did or
said nothing to disabuse them of this. His own notes, as
quoted above, refer to the new system as "hourly rate"
without the qualifying word "flat" which means some-
thing quite different. Berens must have known of the em-
ployees' concern with this aspect of his proposal, and in
those circumstances he seemed willing, even anxious, to
declare matters at impasse.
On August 25 Frank wrote to Berens stating that the
Union did not agree that an impasse existed and request-
ing a meeting. Another session was set up for September
6. However, Berens could not make it and he sent his as-
sociate, Terry Schraeder, in his place. After some discus-
sion, the employees put the question directly to
Schraeder as to whether the proposal was for clock
hours or flat rate hours. Schraeder did not know the
answer but promised to check with the Company and
give them an answer. He did check and returned to tell
the employees that the Company's proposal was to pay a
flat hourly rate based on the Oldsmobile factory book.
Schraeder was unable to explain what would happen
when work involved cars which were out of warranty or
which were not sold by the Company.
This statement, whether it was a classification or a
change in position, made a considerable difference. In
Buskohl's case, he had been working at a commission
rate of $8.55 (47.5 2 percent of $18) on the hours pre-
scribed by the book. The difference in book hours be-
tween the factory book and the other books would make
a difference, so Buskohl's loss under the Company's pro-
posal as it stood on September 6 was 5 cents an hour for
every hour worked added to the loss of hours through
use of the factory book. 2 The loss of the other commis-
21 I note also that Lunder Ihis sy,,tem emphloees s.ould no Ionger re-
ceive an automatic Increase vhenever the Cornmpan, increased it charge
to its customers
sion mechanics relegated to the B category would be
$1.05 an hour plus the hours as noted above. The Sep-
tember 6 meeting produced no further results. Schraeder
made no movement in any area although the Union
made two slight concessions. Another meeting was set
for September 14.
Berens returned on September 14 and the Union's at-
torney, Harry Smith, was present. There is no evidence
that Smith said or did anything at this meeting. Berens
began this meeting with a request to tape-record the ses-
sion, which was rejected, and with a request for a copy
of a contract between the Union and an International
Harvester plant in Sioux Falls, which Frank also refused.
At one point in this meeting Berens offered to sign the
same contract that the Union had with International Har-
vester, and at another point said he would pay the aver-
age of the wages paid to other mechanics in Sioux Falls.
Both of these proposals were refused. Several smaller
items were settled at this meeting and it was tentatively
agreed to meet again on September 28.
There were some additional agreements made at the
September 28 meeting, but no progress was made on the
wage issue. Berens again raised the International Har-
vester question and Frank told him that it was not the
same type of contract, wages were lower but fringes
were higher. Berens again pointed out that the Company
could not stay competitive with the commission system,
but he would not answer a question as to how it could
stay competitive all these years, and suddenly it was no
longer competitive, and he declined to bring in company
records. The meeting broke up after some more agree-
ments had been reached.
The next meeting was held on October 19 with a Fed-
eral mediator present. At this point the parties had
agreed on a number of items leaving only the questions
wage issues, holidays, and the length of the contract.
However, no additional progress was made and no fur-
ther meetings were scheduled.
On October 29, Berens wrote a letter to Frank which,
while it purports to be a summary of the positions of the
parties, added an additional clarification on the wage
issue, pointing out that the Company would use factory
books as it had previously, to cars in warranty, and
would use other books as applicable for other cars.
A meeting was held between the parties on March 13,
1980, but, again nothing was accomplished. At the hear-
ing on May 13, 1980, Berens testified that agreement had
been reached and a contract signed by both parties. 22
D. Analysis and Conclusions
I. Respondent's feelings toward the Union
From the outset the record is clear that David Billion,
and to a lesser extent his father, Henry, bore a passionate
and active dislike of Stan Frank. From my observations
of Frank as he testified at this hearing, and from testimo-
ny by others about him, I can understand to some extent
1 The terms of this agreement are not in evidence However, in a
letler from Frank to Berens dated March 27. 1980, Frank stated that the
employees had accepted the last Company offer as oullined in Berens'
letter of March 9. 1980)
753
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the nature if not the level of these feelings. But it appears
to me in reviewing the testimony of Frager and Buskohl
that David Billion's feelings were directed not only at
Stan Frank, but also at the Union itself. Thus, Frager
quoted Billion at the June 5 meeting as saying, after talk-
ing about Frank, that he did not want anything to do
with organized labor because of what he went through
at the other dealership. When an employee asked wheth-
er they could bring in another union representative to re-
place Frank, Billion replied that no matter who they
brought in it would be the same.
Both Buskohl and Frager testified further as to Bil-
lion's feelings. At the meeting on June 5 Billion moved
beyond his denunciations of Frank and organized labor
to suggest that they "settle things among themselves"
and that they did not need "outside involvement." Simi-
larly, Buskohl quoted Billion, at the meeting of June 6,
as saying that he did not know why the employees had
to pay union dues, and that they could draw up an em-
ployee handbook which would be just as good as a union
contract.
It is thus clear that right at the beginning Respondent
harbored feelings of hostility toward the Union, as well
as toward Frank, and, by David Billion's suggestions to
the employees that they cease paying dues, abandon the
Union and bargain directly with him on June 5 and 6,
Respondent has violated Section 8(a)(1) of the Act.
2. The individual bargaining
On July 3, as I have found, David Billion mentioned
to Buskohl that he was thinking about giving a raise to
the hourly paid employees. Later that day Billion called
Frager in to his office and told Frager that the hourly
paid employees deserved a raise. He denied that he was
bargaining with Frager, but went on to say that, if it was
all right with Stan Frank, he would raise Frager's wages
by 60 cents (from $4.40 to $5 per hour). Billion then said
that if Frank really cared about Frager he would not
object and that if Frank did object it would show what
he cared about the employees. If they did not get the
raise it would be the fault of the Union because ultimate-
ly the Union would decide whether or not they got the
raise.
This I find to be individual bargaining without notice
to the Union2 3 in violation of Section 8(a)(1) and (5) of
the Act. N.L.R.B. v. Benne Katz d/b/a Williamsburg
Steel Products Co., 369 U.S. 736 (1962). 1 find also that
Billion's remarks about the Union's responsibility and
Frank's indifference to the welfare of the employees con-
stitute an additional violation of Section 8(a)(l).
On July 13 David Billion had a similar conversation
with Mike Wenzel. I find that, here also, Respondent
violated Section 8(a)(l) and (5) by individually bargain-
ing with Wenzel. In addition, I find a violation of Sec-
tion 8(a)(1) in Billion's suggestion to Mike Wenzel at the
July 13 meeting that they could get along better without
Frank and if David could just talk to the "guys in the
shop."
23 I do not consider Billion's conversation with Buskohl to be notice to
the Union. Buskohl was the shop steward, but Billion w',as aware that his
obligation was to Frank.
There is no evidence that the proposed wage increases
to Wenzel and Frager were ever put into effect. Thus,
there could be no recision of those increases, and no vio-
lation in that regard.
3. The settlement agreement
On August 20, the Regional Director for Region 18
approved an informal settlement agreement in Case 18-
CA-6328.2 4 Shortly thereafter, the date does not appear
in the record, Respondent sent letters to all of the strik-
ers enclosing a copy of the settlement agreement, and of-
fering full and unconditional reinstatement to their
former positions. The letter required the strikers to con-
tact certain company officials within 3 days of the re-
ceipt of the letter, indicating that if they did not wish to
accept the offer the Company would continue to respect
each one's "rights as an economic striker."
The General Counsel alleges that this letter constitutes
a threat permanently to replace the employees who were
engaged in an unfair labor practice strike. I do not agree.
The letter contains no threat to replace those who did
not accept the offer, and I find no violation here.
Respondent, on the other hand, argues that, even if the
strike at its inception were an unfair labor practice strike,
it was converted to an economic strike by the execution
of the settlement agreement and that the strikers then
became economic strikers subject to permanent replace-
ment. In view of my further findings in this case, I do
not feel it necessary to consider this argument.
4. The bargaining unit
The complaint alleges that the following is an appro-
priate unit for bargaining within the meaning of Section
9(b) of the Act:
All service and body shop employees employed by
the Respondent at its Sioux Falls, South Dakota fa-
cility; excluding office workers, shop superinten-
dents, executive or supervisory managers, parts de-
partment employees, janitors, watchmen, guards
and supervisors as defined in the Act.
This allegation was denied by Respondent in its
answer. Respondent did not, in any event, introduce any
evidence on the unit.
Buskohl testified that the unit consisted of seven me-
chanics, of whom five were on commission and two
were salaried, and eight bodymen, of whom three were
hourly paid. The collective-bargaining agreement defined
the unit covered as "all employees" excluding: "office
workers, salesmen, shop superintendents, executive or su-
pervisory managers, parts department employees, jani-
tors, watchmen or men who have the authority to hire
or discharge." The seniority lists appended to this con-
tract show that the numbers are close to what Buskohl
stated. There was no evidence that the constitution of
the unit had changed at any time, either before or after
the strike.
24 I Te agreement contained a standard nonadmission of liability by
Respondent
754
BILLION OLDSMOBILE-TOYOTA
Because of these reasons, I find that the General
Counsel has shown by a preponderance of the credible
evidence that the unit, as alleged in the complaint, is an
appropriate unit within the meaning of Section 9(b) of
the Act.
5. Dues deductions
The parties stipulated that union dues were deducted
from employees' paychecks during the month of June,
but were not forwarded to the Union by Respondent
until sometime in July. It was further stipulated that this
was known to employees during this period.
Section 10 of the contract contains the agreement of
the Respondent to deduct and pay over the current
union dues and membership fees. Unlike other provi-
sions, this one is limited to "the duration of the con-
tract." In the absence of evidence, and there is none, to
show that the failure to transmit the dues for I month
was done to interfere with the rights of employees, I find
no violation of Section 8(a)(1) and (5) in this failure. In-
dustrial Union of Marine and Shipbuilding Workers of
America [Bethlehem Steel Co.] v. N.L.R.B., 320 F.2d 615
(3d Cir. 1963); Heart of America Mfeat Dealers Association,
168 NLRB 834 (1967).
6. The refusal to bargain
From the beginning it was evident that Respondent
was preparing for a long struggle. David Billion's com-
ments to Frager and Mike Wenzel show that he knew
that negotiations were going to be extended, as they
were. I cannot, on the other hand, place the blame for
the delay in beginning negotiations on Respondent.
David Billion told the employee bargainimg committee
on June 5 that he would not be doing the negotiating,
and on June 6 he furnished Buskohl with Berens' address
and telephone number. This information was duly passed
on to Frank. But Frank did nothing. Through stubborn-
ness, or a misplaced conception of labor relations eti-
quette, Frank allowed the situation to smolder until the
end of July.
When the negotiations began on July 26 it was appar-
ent that Berens was completely unprepared. I have found
that he had only limited contact with David Billion
before this time,25 and that Berens' notes, particularly
for the first two meetings, are unreliable because they do
not conform with the extended and labored notes de-
scribed by Buskohl and Frank and evident in the notes
from August 20 on. Thus, when Berens made the offer
of 48 percent on the commission rate on July 26 he ap-
parently was acting on his own initiative. He was quick-
ly brought around, and the 48-percent figure was with-
drawn on August 1.
Beyond the retraction of the 48-percent offer, the key
to the question of whether Respondent was bargaining in
good faith or was engaging in unlawful surface bargain-
ing is in the wage proposal which Berens made at the
August 7 meeting.
In these days it is unfortunately very clear that eco-
nomic or competitive conditions make it necessary for
employers to attempt reductions in the level of wages
25 David had been on vacation in Minnesota since around July 14
and other benefits paid to employees. In this case Re-
spondent had, according to David Billion's testimony,
taken a survey of other dealers in Sioux Falls and found
that those dealers paid on the flat hourly rate system,
and that the rates paid were less than Respondent was
paying. This furnished the basis for the offer made on
August 7, according to Billion and Berens.
As it developed in the record of this case, the offer
made on August 7, and improved on August 20, was not
a flat hourly rate system, or at least was not explained as
such by Berens. The employees were left with the im-
pression, at least up to September 6, that the proposal
was a clock hourly rate. Either intentionally or uninten-
tionally Berens left them with that impression. Then, on
September 6, Schraeder, who was unfamiliar with the
negotiations, admitted after consultation with Berens, or
someone at the Company that the offer was indeed for
the flat hourly rate, but based on the factory book. To
the employees the first proposal seemed catastrophic,
with the B mechanics having their wages cut almost in
half. The second offer, or clarification, was not as serious
a financial blow, but was still substantial, particularly, as
I have noted, for the bulk of the work force, the B me-
chanics. The final clarification, or revision, of the wage
proposal was not forthcoming until October 29 in
Berens' letter to Frank finally stating that factory books
and other applicable books would be used to compute
the flat rate hours.
It seems elementary to me that if one party to a collec-
tive-bargaining agreement is proposing to the other a
fundamental change in a critical area such as wages, the
party proposing the change has a duty both to state
clearly and with adequate documentation the reason and
rationale for the change, and to explain in detail what
the change is and how it is expected to affect the other
party. Here, even according to his own notes, Berens an-
nounced the change in the Company's wage structure, as
the first item in a catalog of further points, without ex-
planation, justification, or even comment other than to
mention something about being competitive with other
dealers. He concluded his presentation, according to his
notes, by asking, "Do you have a counter." If this was
intentional it shows me a complete lack of good faith, if
unintentional it shows an astonishing naivete and lack of
experience. In the latter case such a reckless lack of con-
cern for the bargaining process is the equivalent of bad
faith.
There was some attempt later to rationalize the pro-
posal by Berens, but this was not until September 14,
when he spoke about getting figures from other dealers,
but in the context of offering "an average" of what the
other dealers were paying.2 6
I consider this "offer" to pay an average of other local
dealers rates to be a sham. Any average would be lower
than the highest and the evidence in this case is clear
26 David tillion testified at the hearing about figures he had compiled
at some lime in 1979 from other dealers in Sioux Falls The General
Counsel objected to this testimony as hearsay. and I suggested to counsel
for Respondentl that he would have to bring Ihose dealers in to testify if
he santed to get that evidence in the record This was not done. so we
have no rationale for Respondent's wage proposals in the record beyond
Billions unsupported and undocumented assertions
755
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Respondent, as the only unionized shop in Sioux
Falls, paid the highest rates in the area. Thus, any "aver-
age" would involve a reduction for Respondent's em-
ployees. I consider this further evidence of bad faith on
the part of Respondent. Similarly, I consider the demand
by Berens for a copy of the contract between the Union
and International Harvester, and the intimations that
Berens would offer those terms to Respondent's employ-
ees, a frivolous diversion. Certainly the fringe benefits
may be higher, but if the wage rates quoted in Beren's
notes for September 14 are accurate, the loss in wages
for Respondent's employees would more than offset any
gain in fringe benefits.
These diversions, 7 when regarded together with the
size of the wage cut proposed on August 7, the paucity
of explanation given either to the Union at the bargain-
ing table, or at this hearing, indicate to me that the
August 7 wage proposal was not a legitimate reflection
of Respondent's economic or competitive problems, but
rather an attempt to freeze the bargaining process into
immobility, which is just what it did.
When this wage proposal is viewed, in consideration
of the totality of Respondent's conduct here: the state-
ments by David Billion in June that negotiations would
be long and drawn out; the attacks on Stan Frank and
organized labor; the suggestions that matters could be
worked out without the Union; the individual bargaining
with employees; the withdrawal of the wage increase;
the announcement by Berens on August 20, at the fourth
bargaining session, of his "final" offer,2" and, on its re-
jection, of an impasse, before the wage offer had been
explained or classified in its final form;2 9 Berens' failure
to attend the meeting set up for August 14; Respondent's
insistence on using the factory book only when it was fi-
nally made clear on September 6 that the wage proposal
was for a flat hourly rate, rather than clock hours; and
the unyielding rigidity of all of Respondent's proposals; I
cannot escape the conclusion that this conduct shows a
planned, calculated strategy to frustrate and ultimately to
nullify the bargaining process.
In consideration of all of the above factors I find that
Respondent has not bargained in good faith in violation
of Section 8(a)(l) and (5) of the Act. N.L.R.B. v.
Herman Sausage Co., Inc., 275 F.2d 229 (5th Cir. 1960);
N.L.R.B. v. Insurance Agents' International Union. AFL-
CIO [Prudential Insurance Company of America], 361 U.S.
477 (1960); Tomco Communications, Inc., 220 NLRB3 636
(1975).
7. The nature of the strike
The evidence is clear that the individual bargaining by
Respondent with Frager and Mike Wenzel was a con-
tributing factor to the decision made by the employees
on July 18 to vote to strike, and on July 25 actually to
21 I view Berens' introduction of work rules into the negotiations,
where there had been no problems or complaints concerning work rules
to be a similar diversion, both irrelevant and disruptive to the process
2R Berens stated at that time that the proposals would be implemented
as of September 1. 1979, but there is no evidence in the record that this
was done.
29 7 he Andrew Jergens Company, 76 NLRB 363 (1948); Metox Moanu-
facturing Company, 225 NLRB 1317 (1976)
begin the strike.30 Therefore, I find that the strike from
its inception was an unfair labor practice strike. The fact
that Respondent entered into a settlement agreement did
not serve to convert the strike to an economic strike
since, as I have found, at the same time that it entered
into the agreement, Respondent was engaged in addition-
al unfair labor practices at least as serious as those cov-
ered by the Agreement. Therefore, I find that the strike
began and continued as an unfair labor practice strike.
IV. THE REMEDY
Having found that Respondent herein has committed
certain unfair labor practices I shall recommend that it
cease and desist therefrom and that it take certain affirm-
ative action designed to effectuate the policies of the
Act. I shall recommend that Respondent bargain in good
faith with the Union, and that it offer full reinstatement
to its employees who began a strike on July 25, 1979, to
their former or substantially equivalent positions from
the date of their unconditional offer to return to work,
discharging, in the process, any replacements for those
strikers; and I shall recommend that Respondent be re-
quired to post the customary notices advising its employ-
ees of their rights and of the results of this case.
CONCLUSIONS OF LAW
1. Respondent, Billion Motors, Inc., d/b/a Billion
Oldsmobile-Toyota, is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Local No. 687, Allied Industrial Workers, AFL-
CIO, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. All service and body shop employees employed by
Respondent at its Sioux Falls, South Dakota facility; ex-
cluding office workers, shop superintendents, executive
or supervisory managers, parts department employees,
janitors, watchmen, guards and supervisors as defined in
the Act constitute a unit appropriate for collective bar-
gaining within the meaning of Section 9(a) of the Act.
4. At all times material herein Local No. 687 has been
the exclusive collective-bargaining representative of the
employees in the unit here found appropriate for the pur-
pose of collective bargaining within the meaning of Sec-
tion 9(a) of the Act.
5. By individually bargaining with employees Re-
spondent has violated Section 8(a)(l) and (5) of the Act.
6. By denigrating the Union and its representatives and
by attempting to solicit its employees to withdraw from
the Union, Respondent has violated Section 8(a)(l) of the
Act.
7. By refusing to bargain collectively in good faith
from and after July 26, 1979, Respondent has violated
Section 8(a)(1) and (5) of the Act.
8. The strike which began on July 25, 1979, was an
unfair labor practice strike.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record, and pursuant to
:U C & E Stores. 221 NLRB 1321 (1976)
756
BILLION ()1I)SM()BILE-TOYOTA
Section 10(c) of the Act, I make the following recom-
mended:
ORDER: '
The Respondent, Billion Motors, Inc.., d/b/a Billion
Oldsmobile-Toyota, Sioux Falls, South Dakota, its offi-
cers, agents, successors. and assigns, shall:
1. Cease and desist from:
(a) Individually bargaining with its employees.
(b) Demeaning and insulting the Union and its repre-
sentatives.
(c) Attempting to persuade its employees to abandon
the Union.
(d) Refusing to bargain in good faith with the Union
as the representative of employees in the unit found ap-
propriate in Conclusion of Law 3, above.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Upon request bargain collectively with the Union
as the representative of employees in the unit found ap-
propriate in Conclusion of Law 3, above.
(b) Offer to each of the employees who began a strike
on July 25, 1979, immediate and full reinstatement to the
jobs they held immediately before July 25, 1979. or if
those jobs no longer exist, to substantially equivalent jobs
without prejudice to their seniority or any other rights
or privileges previously enjoyed, discharging, if neces-
sary, any replacements hired in their places.
:' In the event no exceptions are filed as provided by Sec 102 46 of
Ihe Rules and Regulations of Ihe National L.ibor Relations tloard. the
Findings, conclusions, and recommended Order herein shall, as protided
in Sec. 10248 of the Rules and Regulalions. be adopted by the Hoard and
become its findings, conclusions, and Order, and all ohjectllinis thereto
shall be deemed ssaived for all purposes
(c) Make the striking employees whole for any loss of
earnings they may have suffered by reason of the dis-
crimination against them by paying them backpay from
and after the date when they unconditionally offered to
return to work computed on a quarterly basis in the
manner established by the Board in F W. Woolwrorth
Company , 90 NLRB 289 (1950), and with interest there-
on computed in the manner prescribed in Florida Steel
Corporation, 231 NLRB 651 (1977). 32
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security records, timecards, per-
sonnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its Sioux Falls, South Dakota, location
copies of the attached notice marked "Appendix. " '3
Copies of said notice, on forms provided by the Regional
Director for Region 18, after being duly signed by Re-
spondent's authorized representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by Respondent for 60 consecutive days there-
after, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that the no-
tices are not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director for Region 18, in
mwriting, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
:'' See. generally, Isis Plumbing & Ieating Co_. 138 NLRB 71h (1962)
In the event that this Order is enforced by a Judgment of a Uniled
States Court of Appeals. the words In Ihe notice reading "Posted bhy
Order of the National Llhbor Relations Board" shall read "Posted Pursu-
ant io a Judgment of Ihe Utniled Stales Court of Appeals Enforcing an
Order of Ihe Nallonll l.ahor Relations Board "
757