Broadway Volkswagen

National Labor Relations Board - Board Decisions

Sep 24, 2004

342 N.L.R.B. 1244 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
342 NLRB No. 128
1244
M & M Automotive Group, Inc., d/b/a Broadway
Volkswagen and East Bay Automotive Council,
Consisting of Machinists, Automotive Trades
District Lodge 190, Local Lodge 1546, Interna-
tional Association of Machinists and Aerospace
Workers, AFL–CIO and Teamsters Local 78,
International Brotherhood of Teamsters, AFL–
CIO. Case 32–CA–17424
September 24, 2004
DECISION AND ORDER
BY MEMBERS LIEBMAN, WALSH, AND MEISBURG
On April 18, 2000, Administrative Law Judge Thomas
Michael Patton issued the attached decision. The Gen-
eral Counsel and the Charging Party filed exceptions and
supporting briefs. The Respondent filed an answering
brief.
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 affirms the
judge’s rulings, findings, and conclusions only to the
extent consistent with this Decision and Order.1
I. ISSUES
The issues raised on exception are whether the judge
erred by finding that: (1) the allegation that the Respon-
dent violated Section 8(a)(5) and (1) by unilaterally
granting wage increases and promotions to employees
Fernando Arcos, Pedro Ramos, Charlie O’Neil, and Da-
mien Ferrara is time barred by Section 10(b) of the Act;
(2) the Respondent was privileged to unilaterally grant
employee Jason Espinal a wage increase because he was
told when he was hired that he would receive a wage
increase at the end of his probationary period, in accor-
dance with the Respondent’s policy; (3) the allegation
that the Respondent engaged in unlawful direct dealing
with O’Neil is time barred under Section 10(b); (4) the
Respondent was privileged to withdraw recognition of
the Union; and (5) the Respondent did not unlawfully
refuse to provide the Union with requested information.
As set forth below, we find it unnecessary to pass on
certain of the exceptions, and we find the others to be
meritorious.
II. THE FACTS
The Respondent sells and services new and used cars.
On December 15, 1997, the Union was certified as the

1 We shall substitute a new Order and notice consistent with this de-
cision, and include notice language in accordance with our decision in
Ishikawa Gasket America, Inc., 337 NLRB 175 (2001), enfd. 354 F.3d
534 (6th Cir. 2004).
collective-bargaining representative of the Respondent’s
16 service and parts employees. In a letter to employees
entitled “The Reality of Collective Bargaining,” predat-
ing the certification, the Respondent stated that there was
no telling how long negotiations would last, there was no
guarantee that an agreement would ever be reached, or
that their wages and benefits would increase, and the
Respondent could not unilaterally increase wages or
benefits during negotiations. The letter concluded by
urging employees to communicate their problems di-
rectly to the Respondent and stating that there was no
need for a “middle man.”
The parties first met for negotiations on January 20,
1998,2 and met a total of 10 more times between Febru-
ary and November. At the close of the final meeting on
November 20, the parties had not reached agreement on a
contract. Organizing Director Don Crosatto and Union
Representatives Craig Andrews and Ron Parades repre-
sented the Union in bargaining, and employee Tim Fin-
nerty served as the Union’s employee representative in
all but one of the negotiating sessions. Owners Mike
Murphy and Bill Martin (Martin died prior to the final
meeting) represented the Respondent. The Union did not
have a contractual right to enter the Respondent’s prop-
erty, although, on several occasions during negotiations,
its representatives held impromptu meetings with em-
ployees during lunchbreaks.
The Respondent unilaterally granted wage increases to
six employees and promoted five of them during the pe-
riod of April 1 through January 4, 1999. Although the
parties negotiated over wage rates as well as other mat-
ters, at no time did the parties agree that the Respondent
could make any unilateral changes prior to reaching
overall agreement on the contract. The Respondent never
informed the Union about any of the promotions or wage
increases.
Specifically, on April 1, the Respondent increased
Damien Ferrara’s wages and promoted him to apprentice
detailer. Ferrara previously had been performing “gofer”
and shuttle driver duties. In response to Charlie O’Neil’s
threat to quit, the Respondent’s service manager, on July
8, increased O’Neil’s wages and promoted him from
back counter person to back counter/assistant parts man-
ager. Within a few days, O’Neil told Finnerty about his
wage increase. On August 8, the Respondent increased
Pedro Ramos’ wages and promoted him from detailer to
head detailer. On October 20, the Respondent increased
Fernando Arcos’ wages and promoted him from installer
to apprentice technician.3 On January 4, 1999, the Re-

2 All dates hereafter are in 1998, unless otherwise noted.
3 At Arcos’ request, Crosatto had attempted to obtain a wage in-
crease for Arcos in negotiations, but was unsuccessful.
BROADWAY VOLKSWAGEN 1245
spondent increased Donny Gouvaia’s wages and pro-
moted him from parts driver to apprentice parts counter
person.4 At around the same time, the Respondent in-
creased Jason Espinal’s wages.
Although the Respondent called Ferrara, O’Neil,
Ramos, Arcos, and Gouvaia as witnesses, none of them
testified about their specific job duties either before or
after their wage increases and promotions. Murphy testi-
fied that he, himself, had not been aware of the wage
increases received by Ferrara, Ramos, and Espinal until
the Respondent received the Union’s unfair labor prac-
tice charges, and that lower-level supervisors had made
the decisions to grant the increases. Murphy also testi-
fied that the Respondent did not have official job titles at
any time, and job descriptions had varied depending on
“whoever the department manager is, whatever he per-
ceives that person’s going to be doing, in a vague, gen-
eral way, is what he puts on there. And that’s based on
his background and experience.”5
After the November bargaining session, the parties
suspended bargaining until after the holidays. On about
January 12, 1999, Finnerty told Crosatto that he thought
that the Respondent was trying to “create sentiment” for
decertifying the Union because some employees had
gotten substantial wage increases. Prior to this conversa-
tion, neither Finnerty nor any other employee had in-
formed Crosatto of any wage increases or promotions.
Around the same time, the Union stated in a letter that it
was ready to resume bargaining over wages and benefits
and requested that the Respondent provide a current list
of wage rates for all unit employees. In response, Mur-
phy sent Crosatto a letter and list of wage rates and posi-
tions.6

4 Gouvaia testified that he did not tell any of his coworkers about his
raise, he did not know that O’Neil had received a raise, and he never
heard O’Neil referred to as the assistant manager. He added that, when
managers were not around, the employees did the work “on our own.”
Arcos testified that he never told his coworkers about his wage increase
and did not know until February 1999 that they had received increases.
O’Neil testified that he told Finnerty (and no one else) about his wage
increase; but, contrary to the judge’s finding, the record does not reflect
that O’Neil also told Finnerty about his promotion or about “the cir-
cumstances surrounding the changes” (O’Neil’s discussion of the mat-
ters directly with managers).
5 Murphy testified that Ferrara’s “responsibilities would have in-
creased” with his promotion, but did not specify what Ferrara’s in-
creased responsibilities were or how they would have been apparent.
As to Ramos, Murphy testified that the job duties of head detailer were
identical to those of “new car detailer and detail manager,” but Murphy
did not explain whether and how they differed from the duties of
Ramos’ former position.
6 The list Murphy sent Crosatto reflected wages and job titles for
Ferrara, O’Neil, and Ramos that were inconsistent with the record
testimony set forth in the judge’s decision and discussed above. Gou-
vaia was not on the list.
On February 4, 1999, the Respondent received a peti-
tion signed by 11 of the 16 unit employees stating that
they no longer wanted to be represented by the Union.
Thereafter, the Respondent informed the Union that it
was withdrawing its recognition. A few months later, the
Union requested that the Respondent furnish it with in-
formation, including a list of current employees and their
classifications. The Respondent did not furnish this in-
formation to the Union.
III. THE JUDGE’S DECISION
The complaint alleged that the Respondent violated
Section 8(a)(5) and (1) by unilaterally granting wage
increases to the six unit employees discussed above and
promoting five of them to new unit classifications with-
out bargaining with the Union. It also alleged that the
Respondent bypassed the Union and engaged in direct
dealing with O’Neil about his promotion and wage in-
crease. It further alleged that the Respondent violated
Section 8(a)(5) and (1) by withdrawing recognition of the
Union based on an employee petition tainted by the Re-
spondent’s unfair labor practices and by refusing to pro-
vide information requested by the Union.
The judge found that the Respondent violated the Act
by unilaterally creating the classification of apprentice
counterparts person, setting its wage rate, and promoting
employee Donny Gouvaia to that classification, but he
dismissed the remaining complaint allegations.7 With
regard to the unilateral change allegations involving
Ferrara, O’Neil, Ramos, and Arcos, and the direct deal-
ing allegation as to O’Neil, the judge found that the
charges were time barred, because they were filed more
than 6 months after the Union knew or should have
known about those changes. In addition, the judge found
that the Respondent did not unlawfully increase the
wages of Jason Espinal because he was told when he was
hired that he would receive a wage increase at the end of
his probationary period, in accordance with the Respon-
dent’s policy. The judge further found that, because a
causal relationship had not been established between the
unfair labor practices he found concerning Gouvaia and
the employees’ disaffection, the Respondent did not vio-
late the Act by withdrawing recognition from the Union
and refusing to provide information requested by the
Union.

7 The judge dismissed additional allegations of unilateral implemen-
tation of new unit classifications. It does not appear that the General
Counsel or the Charging Party excepted to these dismissals. In any
event, because the judge found that the Respondent violated the Act by
unilaterally creating the classification of apprentice counterparts person
for Gouvaia, which finding we adopt in the absence of exceptions, any
further such violations found would be cumulative and would not affect
the remedy.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1246
Analysis and Conclusions
For the reasons set forth below, we agree with the
General Counsel and the Charging Party that the allega-
tions of unlawful unilateral wage increases (excluding
O’Neil’s wage increase), promotions, and direct dealing
were not time barred and that the Respondent violated
the Act as alleged.8 In addition, we find that the Respon-
dent unlawfully withdrew recognition from the Union.
In this regard, the Respondent’s unfair labor practices
resulted in a sufficient number of tainted signatures on
the employee petition so that the Respondent could not
properly rely on the petition to support a good-faith
doubt of lack of majority support for the Union. Finally,
because we have found that the Respondent unlawfully
withdrew recognition, we find that the Respondent’s re-
fusal to provide the requested relevant information was
also unlawful.
A. Unilateral Changes and the Timeliness
of the Charge
Section 10(b) states in pertinent part that “[n]o com-
plaint shall issue based on any unfair labor practice oc-
curring more than six months prior to the filing of the
charge with the Board.” The 10(b) period begins only
when a party has “clear and unequivocal” notice of a
violation of the Act. See, e.g., Desks, Inc., 295 NLRB 1,
11 (1989). The burden of showing a complaint is time
barred is on the party raising Section 10(b) as an affirma-
tive defense. Chinese American Planning Council, 307
NLRB 410 (1992), review denied mem. 990 F.2d 624
(2d Cir. 1993). This burden is met by showing the filing
party had actual knowledge or constructive knowledge of
the alleged unfair labor practice more than 6 months
prior to the filing of the charge. Such knowledge may be
imputed where the conduct in question was sufficiently
“open and obvious” to provide clear notice. Duke Uni-
versity, 315 NLRB 1291 fn. 1 (1995), distinguishing
Southeastern Michigan Gas Co., 198 NLRB 1221 fn. 2
(1972), enfd. 485 F.2d 1239 (6th Cir. 1973) (clear notice
given because changes made openly). Similarly, knowl-
edge may be imputed where the filing party would have
discovered the conduct in question had it exercised rea-
sonable or due diligence.9
Applying these principles, we cannot agree with the
judge that the Union had either actual or constructive
knowledge prior to the 10(b) period of the unilateral

8 We find it unnecessary to pass on the judge’s finding that the Re-
spondent did not unlawfully grant a wage increase to Espinal, because
such a finding would be cumulative and would not affect the remedy.
Therefore, we do not address Espinal’s wage increase in our analysis.
9 See Oregon Steel Mills, 291 NLRB 185, 192 (1988), enfd. mem.
sub nom. Gilmore Steel Corp. v. NLRB, 134 LRRM 2432 (9th Cir.
1989), cert. denied 496 U.S. 925 (1990).
wage increases and promotions of, respectively, Ferra-
ras’, Ramos’, and Arcos’, and of O’Neil’s unilateral
promotion.10 There is no evidence that the Union had
actual notice with regard to the changes affecting these
four employees, and it is uncontested that the Respon-
dent never informed the Union about any of those
changes, although it was bargaining over wages and
promotions while it was making the changes.11
We also do not impute constructive knowledge to the
Union because, contrary to the judge’s finding, the Re-
spondent’s implementation of these changes, and the
circumstances in which they were implemented, did not
provide the Union with clear and unequivocal notice.
Prior to Finnerty’s conversation with Crosatto in January
1999, none of the employees informed the Union about
the changes, and there is no evidence that the changes
were apparent. With regard to the wage increases, there
was no evidence of any open or obvious action, indica-
tion, or sign of the changes. As to the promotions, the
Respondent presented little or no record evidence de-
scribing the duties of the employees either before or after
the promotions. Thus, there is no basis for finding that
the Union was on notice that the employees’ duties had
changed. Although the Respondent asserted that the em-
ployees’ job titles had changed, it presented no evidence
that the employees displayed or used their titles with
other employees or customers. Moreover, the evidence
shows that the Respondent had no fixed system of formal
classifications. Given that the Respondent informed em-
ployees that it could not unilaterally increase wages or
benefits during negotiations, it is no surprise that the em-
ployees who received increases and promotions did not
inform the Union that they personally benefited from
changes not offered to others nor agreed to in bargaining.
Indeed, the employees who benefited from the changes
knew nothing about the wage increases and promotions
received by others. Even Murphy, the Respondent’s
owner, testified that, except for Arcos’ wage increase and
promotion, he was unaware of the changes until the filing
of the Union’s charges.

10 We find it unnecessary to pass on the judge’s finding that the al-
leged 8(a)(5) O’Neil wage increase is time barred under Sec. 10(b).
Even if it were not, finding that violation would be cumulative and
would not affect the remedy. Further, contrary to the judge, O’Neil’s
statement to Finnerty did not constitute notice to the Union of O’Neil’s
promotion because O’Neil only informed Finnerty of his wage increase.
We note that the Respondent did not prove that Finnerty, whatever his
status, knew anything beyond O’Neil’s wage increase outside the 10(b)
period.
11 We do not draw an adverse inference against the General Counsel,
as the judge did, for failing to call additional witnesses to corroborate
Crosatto’s uncontested testimony that the Union was unaware of the
unilateral changes. The Respondent bears the burden of supporting its
affirmative defense.
BROADWAY VOLKSWAGEN 1247
Similarly, we find that the record does not support the
judge’s finding that the Union failed to exercise due dili-
gence and, had it done so, it would have discovered the
unilateral changes within the 6-month period for filing
charges. The Union maintained contact with employees
and actively represented them in bargaining, which lasted
about 10 months; the Respondent withdrew recognition
about 2 months later.12 Further, even accepting that Fin-
nerty was an agent or had a special status as the em-
ployee representative in negotiations, as the judge as-
sumed, we do not accept his conclusion that Finnerty’s
knowledge of O’Neil’s wage increase, without more, was
sufficient to impose a due diligence requirement on the
Union to investigate any other possible wage increase or
change in working conditions.
In sum, we conclude that the Respondent failed to es-
tablish that the allegations discussed above are time
barred by Section 10(b). We, therefore, find that the Re-
spondent violated Section 8(a)(5) and (1) by unilaterally
promoting and granting wage increases to Ferrara,
Ramos, Arcos, and Gouvaia, and promoting O’Neil,
without bargaining with the Union.
B. Direct Dealing
An employer engages in direct dealing, in violation of
Section 8(a)(5), if it communicates directly with union-
represented employees, and not the designated represen-
tative, in the course of establishing or changing wages,
hours, and terms and conditions of employment. South-
ern California Gas Co., 316 NLRB 979, 982 (1995). It
is uncontested that the Respondent’s service manager
communicated directly with O’Neil in promoting him
and raising his wages while negotiations were ongoing.
The judge dismissed this complaint allegation solely be-
cause he found that O’Neil told Finnerty about this dis-
cussion more than 6 months before the Union filed its
charge. However, contrary to the judge, we do not find
that the direct dealing allegation is time barred because
there is no record evidence that O’Neil informed Fin-
nerty about his discussions with management that gave
rise to his promotion and wage increase. Therefore, we
find that the Respondent violated the Act by dealing di-
rectly with O’Neil.

12 See, e.g., R. G. Burns Electric, 326 NLRB 440, 440–441 (1998)
(finding the union had exercised reasonable diligence by, among other
things, engaging in surveillance of the employer’s worksite and ques-
tioning sources, notwithstanding its strong suspicion that the employer
had acted unlawfully), distinguishing Moeller Bros. Body Shop, 306
NLRB 191, 192–193 (1992) (union would have discovered evident
violations but for its lack of due diligence in failing to visit worksite
during working hours).
C. Withdrawal of Recognition
Contrary to the judge, we find that the Respondent vio-
lated Section 8(a)(5) and (1) by withdrawing its recogni-
tion of the Union by letter dated February 9, 1999. It is
well established that “an employer may not withdraw
recognition from a union while there are unremedied
unfair labor practices tending to cause employees to be-
come disaffected from the union.” Penn Tank Lines,
Inc., 336 NLRB 1066, 1067 (2001) (citation omitted).
Thus, an employer may not avoid its duty to bargain
where its own unfair labor practices caused the union’s
loss of majority support. See, e.g., NLRB v. Williams
Enterprises, 50 F.3d 1280, 1288 (4th Cir. 1995).
The Board considers the following factors in determin-
ing whether the unfair labor practices caused the loss of
support: (1) the length of time between the unfair labor
practices and the withdrawal of recognition; (2) the na-
ture of the violations, including the possibility for a det-
rimental or lasting effect on employees; (3) the tendency
of the violation to cause employee disaffection; and (4)
the effect of the unlawful conduct on employees’ morale,
organizational activities, and membership in the union.
Master Slack Corp., 271 NLRB 78, 84 (1984).
Applying these factors, we find a causal relationship
between the Respondent’s unfair labor practices and the
expression of employee dissatisfaction with the Union on
which the Respondent based its withdrawal of recogni-
tion. With regard to the first factor, the employees’ ex-
pression of dissatisfaction followed close on the heels of
the Respondent’s unilateral changes, most of which were
implemented in the midst of bargaining for an initial
agreement. The parties engaged in bargaining from
January to November 1998, and the Respondent unilater-
ally implemented the wage increases and promotions
between April 1998 and January 1999. There is no evi-
dence of employee dissatisfaction with the Union prior to
the implementation of the unilateral changes. The Re-
spondent received the petition on February 4, only 1
month after the last unilateral change, and withdrew rec-
ognition shortly thereafter. See, e.g., AT Systems West,
Inc., 341 NLRB 57, 60 (2004) (passage of 9 months
would not reasonably dissipate the effects of the respon-
dent’s conduct).
With regard to the second factor, the Respondent’s
unilateral changes involved the important, bread-and-
butter issues of wage increases and promotions for which
employees seek and gain union representation. Such
changes, particularly where the Union is bargaining for
its first contract, can have a lasting effect on employees.
As the Board found in Penn Tank Lines, Inc., supra,
“[w]here unlawful employer conduct shows employees
that their union is irrelevant in preserving or increasing
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1248
their wages, the possibility of a detrimental or long-
lasting effect on employee support for the union is clear.”
Id. at 1067.
With regard to the third and fourth factors, the Re-
spondent’s secretly granting the employees the wage
increases and promotions that the Union was seeking but
had not obtained in bargaining inescapably caused em-
ployee dissatisfaction with the Union as their bargaining
representative. Thus, we find that the Respondent’s
unlawful conduct did lead to a loss of support and that at
least 5 of the 11 signatures relied upon by the Respon-
dent in withdrawing recognition were tainted by the Re-
spondent’s illegal activity.13 Even assuming no dissemi-
nation of the Respondent’s unfair labor practices beyond
those 5 employees, less than a majority of the 16 unit
employees freely indicated their desire not to be repre-
sented by the Union. In short, we find that the nature and
timing of the Respondent’s unlawful unilateral changes
caused the employee dissatisfaction on which the Re-
spondent based its withdrawal of recognition.
D. The Refusal to Provide Information
An employer has the obligation to provide a union, on
request, with information relevant to the union’s duty as
representative of the employees. NLRB v. Acme Indus-
trial Co., 385 U.S. 432, 435–436 (1967). By letter dated
May 29, 1999, the Union requested that the Respondent
furnish it with information including, among other
things, a list of current employees; rates of pay and job
classifications of the employees; a copy of all company
fringe benefit plans; and a copy of all disciplinary actions
issued in the last year. The Respondent failed and refused
to furnish the Union with the requested information. The
Respondent does not contest the relevance of the infor-
mation; rather, it argues that it did not have a duty to
provide the information because it lawfully withdrew
recognition. We find the requested information relevant
to the Union’s representational responsibilities14 and,
because we have found that the Respondent unlawfully
withdrew recognition, we find that the Respondent’s re-
fusal to provide information also violates Section 8(a)(5).

13 Although we do not pass on whether the allegation concerning
O’Neil’s wage increase was time barred, the Respondent’s unlawful
promotion of and direct dealing with O’Neil, as found above, amply
establish that his signature on the petition was tainted.
14 The information requested by the Union is presumptively relevant
because it directly pertains to terms and conditions of employment of
the employees represented by the Union. See, e.g., Crowley Marine
Services, 329 NLRB 1054, 1060 (1999), enfd. 234 F.3d 1295 (D.C. Cir.
2000); and Equitable Gas Co. v. NLRB, 637 F.2d 980, 993 (3d Cir.
1981) (“information directly relevant to mandatory subjects of bargain-
ing is ‘presumptively relevant,’ and must therefore be disclosed unless
it is plainly irrelevant”).
E. Affirmative Bargaining Order
Finally, for the reasons set forth in Caterair Interna-
tional, 322 NLRB 64 (1996), we find that an affirmative
bargaining order is warranted in this case as a remedy for
the Respondent’s unlawful withdrawal of recognition.
We adhere to the view that an affirmative bargaining
order is “the traditional, appropriate remedy for an
8(a)(5) refusal to bargain with the lawful collective-
bargaining representative of an appropriate unit of em-
ployees.” Id. at 68.
In several cases, however, the U.S. Court of Appeals
for the District of Columbia Circuit has required that the
Board justify, on the facts of each case, the imposition of
such an order. See, e.g., Vincent Industrial Plastics v.
NLRB, 209 F.3d 727 (D.C. Cir. 2000); Lee Lumber &
Bldg. Material v. NLRB, 117 F.3d 1454, 1462 (D.C. Cir.
1997); and Exxel/Atmos v. NLRB, 28 F.3d 1243, 1248
(D.C. Cir. 1994). In Vincent, supra, the court summa-
rized its requirement that an affirmative bargaining order
“must be justified by a reasoned analysis that includes an
explicit balancing of three considerations: (1) the em-
ployees’ Section 7 rights; (2) whether other purposes of
the Act override the rights of employees to choose their
bargaining representatives; and (3) whether alternative
remedies are adequate to remedy the violations of the
Act.” Id. at 738.
Although we respectfully disagree with the court’s re-
quirement for the reasons set forth in Caterair, supra, we
have examined the particular facts of this case as the
court requires and find that a balancing of the three fac-
tors warrants an affirmative bargaining order.
(1) An affirmative bargaining order in this case vindi-
cates the Section 7 rights of the unit employees who were
denied the benefits of collective bargaining by the Re-
spondent’s refusal to recognize and bargain with the Un-
ion. At the same time, an affirmative bargaining order,
with its attendant bar to raising a question concerning the
Union’s continuing majority status for a reasonable time,
does not unduly prejudice the Section 7 rights of em-
ployees who may oppose continued union representation
because the duration of the order is no longer than is rea-
sonably necessary to remedy the ill effects of the viola-
tion. To the extent such opposition may exist, moreover,
it may be at least in part the product of the Respondent’s
unfair labor practices.
An affirmative bargaining order is especially war-
ranted because many of the Respondent’s unfair labor
practices occurred throughout the initial certification
year. By this conduct, the Respondent substantially un-
dermined the Union’s opportunity effectively to bargain,
without unlawful interference, during the period when
unions are generally at their greatest strength. Because
BROADWAY VOLKSWAGEN 1249
the Union was never given a truly fair opportunity to
reach an accord with the Respondent, it is only by restor-
ing the status quo ante and requiring the Respondent to
bargain with the Union for a reasonable period of time
that employees will be able to assess for themselves the
Union’s effectiveness as a bargaining representative.
(2) An affirmative bargaining order also serves the
policies of the Act by fostering meaningful collective
bargaining and industrial peace. That is, it removes the
Respondent’s incentive to delay bargaining in the hope
of further discouraging support for the Union. It also
ensures that the Union will not be pressured by the Re-
spondent’s withdrawal of recognition to achieve immedi-
ate results at the bargaining table following the Board’s
resolution of its unfair labor practice charges and issu-
ance of a cease-and-desist order.
(3) A cease-and-desist order, alone, would be inade-
quate to remedy the Respondent’s refusal to bargain with
the Union in these circumstances because it would permit
a decertification petition to be filed before the Respon-
dent has afforded the employees a reasonable time to
regroup and bargain through their representative in an
effort to reach an initial collective-bargaining agreement.
Such a result would be particularly unfair in circum-
stances such as those here, where the Respondent’s un-
fair labor practices were of a continuing nature and were
likely to have a continuing effect, thereby tainting em-
ployee disaffection from the Union arising during that
period or immediately thereafter. We find that these cir-
cumstances outweigh the temporary impact the affirma-
tive bargaining order will have on the rights of employ-
ees who oppose continued union representation.
For all the foregoing reasons, we find that an affirma-
tive bargaining order with its temporary decertification
bar is necessary to fully remedy the allegations in this
case.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act, we shall order the Respondent
to cease and desist from engaging in such conduct and to
take certain steps to effectuate the policies of the Act.
We shall also order the Respondent, if requested by the
Union, to rescind the unilateral wage increases and pro-
motions granted. Nothing in this Order, however, shall
be construed to require the Respondent to withdraw any
benefit previously granted unless requested by the Union.
See Taft Broadcasting Co., 264 NLRB 185 fn. 6 (1982).
Having found that Respondent unlawfully refused to
give the Union relevant information, which it had re-
quested, we shall order that Respondent furnish the Un-
ion with the requested information.
Having found that Respondent unlawfully withdrew
recognition of the Union, we shall order that the Respon-
dent bargain with the Union in the below described unit
with respect to rates of pay, wages, hours, and other
terms and conditions of employment and, if an agree-
ment is reached, embody it in a signed document.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, M & M Automotive Group, Inc., d/b/a
Broadway Volkswagen, Oakland, California, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain in good faith
with East Bay Automotive Council, Consisting of Ma-
chinists, Automotive Trades District Lodge 1546, Inter-
national Association of Machinists and Aerospace Work-
ers, AFL–CIO and Teamsters Local 78, International
Brotherhood of Teamsters, AFL–CIO as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit:

All full-time and regular part-time journeymen, appren-
tice technicians, service advisors, parts people, and de-
tailers, employed by the Respondent at its Oakland,
California, facility; excluding all sales persons, office
clerical employees, guards, and supervisors as defined
in the Act.

(b) Unilaterally granting wage increases and promo-
tions, and implementing new unit classifications without
bargaining about these changes with the Union.
(c) Breaching its duty to bargain in good faith by deal-
ing directly with an employee.
(d) Failing and refusing to furnish the Union with in-
formation it has requested that is necessary and relevant
to the Union in the performance of its duties as the ex-
clusive collective-bargaining agent of the employees in
the above appropriate unit.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize, and on request, bargain collectively
with the Union as the exclusive representative of the Re-
spondent’s employees in the above unit with respect to
rates of pay, wages, hours, and other terms and condi-
tions of employment and, if an agreement is reached,
embody it in a signed document.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1250
(b) If the Union requests, cancel the wage increases
and rescind the promotions unlawfully granted to unit
employees through the Respondent’s unilateral action;
provided, however, that nothing in this Order shall be
construed as requiring the Respondent to rescind the
wage increase granted unless the Union requests such
action.
(c) Furnish the Union with the relevant information it
requested, as set forth in the Union’s May 29, 1999 letter
to the Respondent.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Oakland, California, copies of the attached
notice marked “Appendix.”15 Copies of the notice, on
forms provided by the Regional Director for Region 32,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since April 1, 1998.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD

15 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an 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 Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

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

WE WILL NOT refuse to bargain in good faith with East
Bay Automotive Council, Consisting of Machinists,
Automotive Trades District Lodge 1546, International
Association of Machinists and Aerospace Workers,
AFL–CIO and Teamsters Local 78, International Broth-
erhood of Teamsters, AFL–CIO as collective-bargaining
representative of the employees in the following bargain-
ing unit:

All full-time and regular part-time journeymen, appren-
tice technicians, service advisors, parts people, and de-
tailers, employed by us at our Oakland, California, fa-
cility; excluding all sales persons, office clerical em-
ployees, guards, and supervisors as defined in the Act.

WE WILL NOT unilaterally implement wage increases,
promotions, and new unit classifications without bargain-
ing with the Union.
WE WILL NOT breach our duty to bargain in good faith
by dealing directly with an employee.
WE WILL NOT refuse to provide the Union with re-
quested relevant information.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL recognize, and on request, bargain collec-
tively with the Union as the exclusive representative of
our employees in the above unit with respect to rates of
pay, wages, hours, and other terms and conditions of
employment and, if an agreement is reached, embody it
in a signed document.
WE WILL on the Union’s request, cancel and rescind all
or part of the terms and conditions of employment uni-
laterally implemented on or after April 1, 1998, and ret-
roactively restore preexisting terms and conditions of
employment, but nothing in the Board’s Order is to be
construed as requiring us to cancel any unilateral change
that benefited the unit employees without a request from
the Union.
BROADWAY VOLKSWAGEN 1251
WE WILL furnish the Union with the relevant informa-
tion it requested, as set forth in the Union’s May 29,
1999 letter to us.

M & M AUTOMOTIVE GROUP, INC., D/B/A
BROADWAY VOLKSWAGEN

Jeffrey L. Henze, Esq., for the General Counsel.
Bethany M. Kaye, Atty. (Littler Mendelson, P.C.), of San Fran-
cisco, California, for the Respondent.
Antonio Ruiz and David A. Rosenfeld, Attys. (Van-
Bourg,Weinberg, Roger and Rosenfeld), of Oakland, Cali-
fornia, for the Charging Party.
DECISION
STATEMENT OF THE CASE
THOMAS MICHAEL PATTON, Administrative Law Judge. I
heard this case at Oakland, California, on November 18,
1999.The charge was filed by East Bay Automotive Council,
consisting of Machinists Automotive Trades District Lodge
190, Local Lodge 1546, International Association of Machinists
and Aerospace Workers, AFL–CIO and Teamsters Local 78,
International Brotherhood of Teamsters, AFL–CIO (the Union).
The original charge was filed by the Union on May 6, 1999,
and served on May 7, 1999. An amended charge was filed on
June 8, 1999, and served on June 22, 1999.
My findings are based upon the entire record, including the
post hearing briefs.1 In assessing credibility I have considered
the inherent probability of the testimony, as well as the de-
meanor of the witnesses. Much of the evidence consists of
stipulations, documents received without objection, and uncon-
troverted testimony.
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
The Respondent admits facts establishing that it meets the
Board’s jurisdictional standards and that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. Respondent also admits that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
The Respondent is engaged in the sale and service of new
and used cars. The facility involved in this case is located in
Oakland, California. The Union was certified as the exclusive
collective-bargaining representative of approximately 16 ser-
vice and parts department employees on December 15, 1997, in
Case 32–RC–4338. The description of the unit is:

All full-time and regular part-time journeymen, apprentice
technicians, service advisors, parts people, and detailers, em-
ployed by Respondent at its Oakland, California, facility; ex-

1 The General Counsel and Respondent filed briefs. The Union
joined the brief of the General Counsel.
cluding all sales persons, office clerical employees, guards,
and supervisors as defined in the Act.

The complaint alleges that following certification of the Un-
ion, but prior to any decertification election, the Respondent
granted wage increases to six unit employees, unilaterally pro-
moted five of those employees to new unit classifications that
were unilaterally implemented and thereafter withdrew recogni-
tion of the Union and refused to provide requested information
to the Union.
The complaint further alleges that the changes were made
without prior notice to the Union and without providing the
Union an opportunity to bargain with Respondent with respect
to this conduct and the effects of this conduct, without an over-
all impasse in negotiations for a collective-bargaining agree-
ment, and as a result of direct dealing with unit employees. The
General Counsel asks that the remedy include an extension of
the certification.
The Respondent concedes that employees were promoted
and given wage increases, but denies that new classifications
were implemented and argues that its actions with regard to
promotions and wage increases were lawful in the context of
past practice and collective bargaining with the Union. Respon-
dent also raises a defense that the allegations regarding four of
the six employees are barred by the limitations period in Sec-
tion 10(b) of the Act. The Respondent further asserts that with-
drawal of recognition was privileged because of an employee
petition and that the subsequent refusal to furnish information
was therefore not unlawful.
B. The Collective Bargaining
The parties first met for negotiations on January 20, 1998.2
Additional negotiation meetings were held on February 3 and
24, March 19, April 23, June 11, 12, and 18, July 16, Septem-
ber 4, and November 19. The Union was represented at the
bargaining table by Business Representatives Don Crosatto,
Craig Andrews, Ron Paredes, and employee Tim Finnerty.3
Respondent’s owners, Bill Martin and Mike Murphy repre-
sented the Respondent. At the final meeting Murphy alone
represented Respondent. Martin had died prior to the final
meeting.
At the negotiation meetings the parties exchanged written
proposals and discussed their respective positions on many
subjects. The Union made requests for information, including
wage information during the course of the bargaining and the
Respondent furnished the information in timely fashion. At the
close of the November meeting the parties had not reached
agreement on a contract.
Crosatto credibly testified that at no time in the course of the
bargaining was agreement ever reached that the Respondent
could give any employee a pay increase prior to the time that
any overall agreement was reached. The negotiations specifi-
cally relating to the alleged unilateral changes are addressed in
the discussion of the affected individuals.

2 Unless otherwise indicated, all dates are 1998.
3 Employee Gunnar Peterson rather than Finnerty was the employee
representative at the at the November 19 meeting. Andrews and Pare-
des were not at some negotiation meetings.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1252
The parties agreed to suspend negotiations until after the
holidays. After the holidays the parties discussed meeting in
February 1999. By letter of January 15, 1999, Crosatto stated
that the Union was ready to resume negotiations and requested
wage information from Murphy. By letter of January 22,
1999,4 Murphy transmitted the requested information and stated
that he would be ready to resume negotiations anytime after
February 9, 1999. Murphy testified that at the conclusion of the
November 19 meeting the parties had reached tentative agree-
ment on some issues and not on others.
Murphy testified that there were still a lot of things under
discussion and that he believed that at the end of the last nego-
tiation session on November 19 that further discussions might
lead to an agreement and that the Respondent was still willing
to meet. However, on February 9, 1999, Respondent’s attorney
advised the Union that Respondent was withdrawing recogni-
tion. No bargaining has taken place since November 19.
C. The Promotions and Wage Increases
As described in more detail below, the Respondent granted
wage increases to six unit employees during the period April 1,
1998, through January 4, 1999. In addition, five of those em-
ployees were assigned to different jobs.
1. Damien Ferrara5
On April 1, 1998, the wages of unit employee Damien
Ferrara were increased from $6.50 per hour to $8 per hour. It is
stipulated that prior to granting this increase the Respondent did
not notify the Union, verbally or in writing, that it intended to
grant the increase. At that time Ferrara was also promoted from
gofer and shuttle driver to apprentice detailer. The parties stipu-
lated that from the date the Union was certified until the date
Ferrara was promoted Respondent had no employee with the
job description of apprentice detailer. The Respondent did em-
ploy at least one detailer, Pedro Ramos, discussed below. At the
time Ferrara was promoted Ramos was earning $9.50 per hour.
The Union’s bargaining notes consisting of 20 handwritten
pages were received in evidence. The notes of the June 18 ne-
gotiation meeting contain the notation “Damien $8/hr.” Union
Agent Crosatto initially testified that the notes were in his
handwriting, but later corrected himself, stating that at least a
portion of the notes was not his handwriting and that he recog-
nized at least a portion to be in Craig Andrews’s handwriting.
The question of who prepared which portions of the notes was
not resolved. Andrews did not testify. Crosatto’s attention was
not directed to the quoted notation and he was not specifically
asked about the notation
The notes of the June 18 meeting show “MM” and “DC”
were among those present on June 18. Crosatto testified that
Murphy was present at all negotiating meetings. Murphy credi-
bly testified that he had no knowledge that Ferrara had received
the April 1 wage increase until the unfair labor practice charges
were filed. Murphy credibly testified that Service Manager Lee
Molignoni had approved the promotion of Ferrara.

4 The letter, GC Exh.. 5, bears the date of “January 22, 1998,” an
obvious typographical error.
5 The complaint was amended at the hearing to correct the spelling
of Ferrara’s name.
I conclude that Murphy and Crosatto were both present at the
June 18 meeting. The evidence, including the testimony, the
stipulations and the negotiation notes, establish that the Re-
spondent did not advise the Union at the June 18 meeting that
Ferrara had been given a wage increase on April 1 and that the
Union did not at any time agree to Ferrara being given a wage
increase or promotion. There was no bargaining regarding cre-
ating or filling the job of apprentice detailer.
2. Charlie O’Neil
Unit employee Charlie O’Neil began working for Respon-
dent in 1997. On July 8, 1998, O’Neil’s wage rate was in-
creased from $18.32 per hour to $19.32 per hour. The Union
had proposed a rate of $20.50 for an assistant parts manager
position in bargaining. At the time he was given the wage in-
crease, O’Neil was working as back counter person. O’Neil was
called as a witnesses by Respondent and credibly testified that
when he was given the increase he was given the title of assis-
tant parts manager. Murphy testified that O’Neil’s job after the
promotion was back counter person and assistant manager and
that he was given additional duties.6 The parties stipulated that
from the date the Union was certified until the date O’Neil was
promoted Respondent had no employee with the job description
of back counter/assistant parts manager. There was no bargain-
ing regarding creating or filling the job of back counter/assis-
tant parts manager.
Within a few days of receiving this wage increase, O’Neil in-
formed Tim Finnerty of his promotion and a raise, and the cir-
cumstances surrounding the changes. The evidence establishes
that the Union did not agree to the changes in O’Neil’s terms
and conditions of employment. It was stipulated that the Re-
spondent did not notify the Union of O’Neil’s wage rate in-
crease verbally or in writing.
3. Pedro Ramos
On August 8, 1998, the wages of unit employee Pedro
Ramos were increased from $9.50 per hour to $10.50 per hour
and he was promoted from detailer to head detailer. The parties
stipulated that prior to granting this increase the Respondent did
not notify the Union, verbally or in writing, that it intended to
grant this increase. Murphy testified that he did not notify the
Union that Ramos was given the promotion and wage increase.
I credit Crosatto’s testimony that the Respondent did not notify
the Union of the changes either before they were made. Murphy
credibly testified that sales manager George Neri had approved
the promotion of Ramos.
Murphy testified that Respondent had a former employee
named Richard Costa who worked as head detailer, but he
could not recall when. Personnel records establish that Costa
was, in fact, made “new car detailer & detail manager” on Sep-
tember 16, 1997. The parties stipulated that Costa was a unit
employee earning $2000 per month as of February 3, 1998. The
date he ceased to be an employee was not established.

6 No party contends, and no evidence was introduced, that O’Neil
became a statutory supervisor as a result of his promotion. The parts
manager and service manager appear to statutory supervisors and
agents of the Respondent.
BROADWAY VOLKSWAGEN 1253
Murphy credibly testified that the job duties of head detailer
and new car detailer & detail manager were identical, however,
the Union did not at any time agree to Ramos being given a
wage increase or promotion and there was no bargaining re-
garding creating or filling a job with the title of head detailer.
4. Fernando Arcos7
On October 20, the wages of unit employee Fernando Arcos
were increased from $9.50 per hour to $12.50 per hour and
Arcos was promoted from installer to apprentice technician.
Both Murphy and Crosatto testified that Arcos was discussed in
negotiations. Arcos had approached both the Union and Re-
spondent during negotiations seeking a pay raise. There is no
evidence that the Union agreed to the wage increase given to
Arcos and there is no evidence that the Union agreed to the
specific wage rate that Arcos was given on October 20.
Apprentice technician is a position specifically included in
the description of the certified unit, but there is no record evi-
dence that any employee worked in this classification from the
date the Union was certified until Arcos was promoted. Murphy
credibly testified that the Respondent told the Union that Arcos
should either be let go or put in “the apprenticeship program.”
Crosatto testified that he told Murphy in negotiations that
“[y]ou basically got two choices. You can either make him an
apprentice mechanic, or you can make him an installer.” (Me-
chanic is a synonym for technician.) Murphy described the
Respondent’s apprenticeship program for technicians as on the
job training and attending Volkswagen classes and other
classes. There is no evidence that the Union agreed to the job
duties, training or wages to be received by an apprentice tech-
nician. I credit Crosatto’s testimony that the Respondent did not
notify the Union of the changes affecting Arcos, either before
they were made.
5. Jason Espinal
Sales Manager George Neri hired unit employee Jason Espi-
nal on September 15, 1998,8 as an assistant detailer, at a wage
rate of $8 per hour. Effective January 1, 1999, Espinal’s wage
rate was increased to $9 per hour. Neri authorized the increase.
The parties stipulated that prior to granting this increase the
Respondent did not notify the Union, verbally or in writing,
that it intended to grant this increase.
Espinal’s personnel record shows that he was advised in
writing at the time he was hired that he would receive an in-
crease to $9 per hour after 90 days of satisfactory performance.
The Union was not advised of the commitment Respondent had
made to give Espinal a wage increase after 90 days and the
Union did not at any time agree to it.
I credit Crosatto’s testimony that the Respondent did not no-
tify the Union of Espinal’s wage increase either before or after
it was granted.

7 The complaint was amended at the hearing to correct the spelling
of Arco’s name.
8 His hiring documents incorrectly show his hire date as September
15, 1999. The parties stipulated that the date was September 15, 1998.
6. Donny Gouvaia9
On January 4, 1999, the wage rate of unit employee Donny
Gouvaia was increased from $10.50 per hour to $14 per hour
and he was promoted from parts driver to apprentice parts
counter person. The parties stipulated in writing that prior to
granting this increase the Respondent did not notify the Union,
verbally or in writing, that it intended to grant this increase.
There were discussions about the possibility of moving Donnie
Gouvaia up from parts driver to apprentice parts person, how-
ever, the Union did not at any time agree to Gouvaia being
given a wage increase or promotion and there was no bargain-
ing regarding creating or filling a job with the title of apprentice
parts counter person.
The parties stipulated that from the date the Union was certi-
fied until the date Gouvaia was promoted Respondent had no
employee with this job description. I credit Crosatto’s testi-
mony that the Respondent did not notify the Union of the
changes either before they were made. Murphy credibly testi-
fied that Parts Manager Bill Scott had approved the promotion
of Gouvaia.
D. The Alleged Direct Dealing
In July, O’Neil informed the Respondent’s parts manager,
Bill Scott, of a job offer he had received from another employer
and asked for a wage increase. Scott told O’Neil that there was
nothing he could do. O’Neil immediately informed the service
manager, Lee Molignoni, that he was quitting. Hoping to keep
O’Neil, Molignoni told O’Neil he would see what he could do
and asked O’Neil to give him until that afternoon or the next
day. Molignoni thereafter offered O’Neil the job of assistant
parts manager and raised his wages to $19.32 per hour, effec-
tive July 8. The General Counsel contends that the discussions
between O’Neil and Molignoni was unlawful direct dealing. As
noted above in the discussion regarding O’Neil’s promotion,
when O’Neil told Finnerty about his promotion, he told him of
the circumstances surrounding the changes. Those circum-
stances were the discussions with Scott and Molignoni de-
scribed above.
E. The Withdrawal of Recognition
On February 4, 1999, the Respondent received a handwritten
petition signed by 11 of the 16 unit employees. The petition
stated, “The undersigned employees of Broadway VW no
longer want to be represented by Machinists local 1546/Local
78.” The signers included employees Ferrara, O’Neil, Arcos,
Espinal, and Gouvaia.
On February 9, 1999, the Respondent’s attorney sent a letter
by mail and FAX to Crosatto withdrawing recognition of the
Union. The text of the letter was as follows:

I am writing you at the request of Broadway Volks-
wagen. The purpose of this letter is to inform you that
Broadway Volkswagen has received objective evidence
that a majority of the employees in the collective bargain-
ing unit represented by Machinists Local 1546 no longer
wish to be represented by the Union. Based on this objec-

9 The complaint was amended at the hearing to correct the spelling
of Gouvaia’s name.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1254
tive evidence, Broadway Volkswagen doubts in good faith
that the Union represents the unit employees.
Accordingly, by this letter, I have been authorized by
Broadway Volkswagen to withdraw recognition of Ma-
chinists 1546 as the representative of the dealership’s em-
ployees. The dealership will not bargain further with the
union.
F. The Refusal to Furnish Information
By letter dated May 29, 1999, the Union requested that Re-
spondent furnish it with the following information:

1. A list of current employees including their names,
dates of hire, rates of pay, job classification, last known
address, phone number and date of completion of any pro-
bationary period, and any wage increases received during
the period January 1, 1999 to present.
2. A copy of all current company personnel policies,
practices or procedures;
3. A statement and description of all company person-
nel policies, practices or procedures other than those men-
tioned in Number 2 above;
4. A copy of all company fringe benefit plans includ-
ing pension, profit sharing, severance, stock incentive, va-
cation, health and welfare, apprenticeship, training, legal
services, child care or any other plans which relate to the
employees;
5. Copies of all current job descriptions;
6. Copies of any company wage or salary plans;
7. Copies of all disciplinary notices, warnings or re-
cords of disciplinary personnel actions for the last year.
8. A statement and description of all wage and salary
plans which are not provided under number 6 above.

The Respondent has not furnished the requested information.
II. ANALYSIS AND CONCLUSIONS
A. Contract Negotiations
The complaint does not allege that the conduct of Respon-
dent during negotiations demonstrated bad faith. The General
Counsel does urge a finding that there was never an impasse in
bargaining. At the hearing Respondent’s attorney stated that it
was the Respondent’s position that the Union walked away
from the table for several months and reserved the right to ad-
dress the issue of impasse in the posthearing brief, however,
Respondent’s posthearing brief does not urge a finding of im-
passe.
Impasse is a breakdown in collective-bargaining negotiations
when neither side will make further concessions. It is a situa-
tion in which one party is warranted in assuming that the other
party has abandoned any desire for continued negotiations, or
that further good-faith bargaining would be futile. While the
negotiations apparently proceeded at a leisurely pace, the good-
faith obligation to initiate meetings and to meet was mutual on
both parties. Moreover, the parties were engaged in their first
experience in bargaining after certification and their efforts to
achieve a contract should be accorded the fullest opportunity.
Alsey Refractories Co., 215 NLRB 785 (1974).
As described in part II,B above, at the conclusion of the No-
vember 19 meeting the parties had reached tentative agreement
on some issues. Other items were still under discussion at the
conclusion of the November 19 meeting, but Murphy testified
that it was his opinion that further discussions might lead to an
agreement and that the Respondent was still willing to meet.
Respondent demonstrated a continued willingness to meet by
Murphy’s January letter of January 22, 1999, where he stated
that he would be ready to resume negations anytime after Feb-
ruary 9. The evidence establishes that there was no impasse in
the negations.
B. The 10(b) Defense—Employees Arcos, Ramos,
O’Neil, and Ferrara
The Respondent urges dismissal of the allegations relating to
Arcos, Ramos, O’Neil, and Ferrara as being time barred under
Section 10(b) of the Act. The earliest charge was filed and
served more than 6 months after the changes affecting those
employees were made.
The Respondent maintains that the evidence shows that the
Union had knowledge of O’Neil’s increase in early July when
O’Neil spoke to Finnerty. The Respondent reasons that if the
Union did not have actual knowledge of the changes affecting
Arcos, Ramos, and Ferrara, it was willfully ignorant, arguing
that the Respondent did not actively hide the changes, complied
with the Union’s information requests and did not prevent em-
ployees from speaking with union representatives. In support of
its position Respondent cites Moller Bros. Body Shop, 306
NLRB 191 (1992).
The General Counsel argues that the evidence does not es-
tablish that the Union had actual or constructive knowledge of
the changes, citing John Morrell & Co., 304 NLRB 896 (1991).
The General Counsel points to the stipulation that the Respon-
dent did not notify the Union of the alleged unilateral changes
and the testimony of Crosatto that he did not learn of the
changes before January 1999.
The General Counsel acknowledges that under R. G. Burns
Electric, 326 NLRB 440 (1998), and Duke University, 315
NLRB 1291(1995), even in the absence of actual knowledge, a
union may be charged with knowledge if the charging party
knew or should have known of the unfair labor practice and
could have discovered it in the exercise of due diligence. As
noted by the General Counsel, where a charging party is on
notice of facts sufficient to create a suspicion that a statutory
violation has occurred, due diligence requires further investiga-
tion to determine whether the conduct was unlawful. Garrett
Railroad Car & Equipment, Inc., 289 NLRB 158 (1988).
The General Counsel argues that the facts in the present case
distinguishes it from R. G. Burns, supra, Duke University, su-
pra, and Moller Bros., supra, arguing that the evidence does not
establish actual knowledge or facts that would cause the Union
to have constructive knowledge.
It is well established that a defense under Section 10(b) is an
affirmative defense. The 10(b) period does not begin running
until the charging party has either actual or constructive knowl-
edge of the existence of facts that would establish the violation.
It is settled that a respondent asserting a 10(b) defense bears the
burden of establishing that the charging party had such knowl-
BROADWAY VOLKSWAGEN 1255
edge more than 6 months before filing the charge. Leach Corp.,
312 NLRB 990, 991 (1993), enfd. 54 F.3d 802 (D.C. Cir.
1995). I conclude that the evidence establishes that Section
10(b) bars the allegations relating to Arcos, Ramos, O’Neil, and
Ferrara.
The 10(b) period can begin to run when an employer openly
implements change in employees’ wages and fringe benefits.
The Board has found open and actual changes in working con-
ditions to constitute clear notice to all as of the dates the
changes are made. Southeastern Michigan Gas Co., 198 NLRB
1221 fn. 2 (1972). The facts of the present case establish that
the changes affecting Arcos, Ramos, O’Neil, and Ferrara were
open and obvious and effectively gave notice to the Union
more than 6 months before a charge was filed. The changes
affecting all four employees included reassignment to what the
complaint alleges and the General Counsel argues were new job
classifications with different job duties. In the case of Ferrara
and Arcos, the new jobs appear to be markedly different. The
changes were particularly obvious because they affected 25
percent of a 16-person unit at a single location.
Within a few days of receiving his wage increase, O’Neil in-
formed Tim Finnerty of his promotion and the circumstances
surrounding the changes. O’Neil’s report to Finnerty is addi-
tional evidence that 10(b) bars the allegations of changes affect-
ing Arcos, Ramos, O’Neil, and Ferrara. O’Neil was promoted
on July 8. Within a few days of his promotion O’Neil had told
Finnerty of his promotion, as well as the circumstances.
Crosatto testified that Finnerty was a member of the Union’s
bargaining committee. Crosatto admitted that he spoke with
Finnerty before and after the negotiating sessions and spoke
with him regularly by phone.
Finnerty appears to have been an agent of the Union, at least
for the purpose of communication between the unit employees
and the Union. This is one of the functions customarily associ-
ated with the role of employee members of a union’s negotia-
tion committee. O’Neil statement to Finnerty was, therefore,
notice to the Union in July of O’Neil’s promotion, as well as
notice of the alleged direct dealing with him. Moreover, the
receipt of this information should have alerted Finnerty and the
Union to Ferrara’s earlier promotion as well as the subsequent
promotions of Ramos and Arcos, all of which were openly
made.
The Board’s decision in California Portland Cement Co.,
330 NLRB 144 (1999), does not require a different result. In
that case it was concluded that a nominal steward who was
working behind the union’s picket line and who was considered
a supervisor by the respondent employer was not the agent of
the union to receive notice of unilateral changes. The facts in
California Portland Cement Co., supra, contrast sharply with
those in the present case.
Even if Finnerty is not viewed as an agent, his special status
as a representative of the employees in negotiations and his
strong support of the Union implicit in his participation in ne-
gotiations is, absent any rebuttal evidence, sufficient to warrant
an inference that Finnerty did inform the Union of O’Neil’s
promotion and of the alleged direct dealing. This inference is
supported by the testimony of Crosatto that he stressed in orga-
nizing meetings that any increases before a full contract was
achieved would first have to be approved by the Union.
Based on the foregoing, I conclude that the Respondent has
made a prima facie showing that the Union had knowledge of
the changes affecting Arcos, Ramos, O’Neil, and Ferrara suffi-
cient to cause the 10(b) limitations period to begin running over
6 months prior to the filing of the initial charge. The General
Counsel has not rebutted the Respondent’s prima facie show-
ing.
Finnerty was not called as a witness regarding either his du-
ties as a member of the negotiation committee or what he re-
ported to the Union regarding his conversations with O’Neil
and what he must have observed of the changed job duties of
Arcos, Ramos, O’Neil, and Ferrara. It can be reasonably as-
sumed that as a witness Finnerty would have been favorably
disposed to the Union. In this regard, there is no evidence that
Finnerty received any special treatment that would tend to
cause him to testify untruthfully in support of the Respondent
and he was not one of the employees who signed the antiunion
petition. Under these circumstances, I draw an adverse infer-
ence from the General Counsel’s failure to call Finnerty. See
Electrical Workers Local 3 (Teknion, Inc.), 329 NLRB 337
(1999). Employing the same rationale, I conclude that Andrews
and Paredes, the other union officials who participated in the
negotiations, would be favorably disposed to the Union. I draw
an adverse inference form the General Counsel’s failure to call
them. Thus, I conclude that had Finnerty, Andrews and Paredes
been called, they would have supported the Respondent’s posi-
tion on the 10(b) issue.
Finally, I find that Crosatto had constructive knowledge of
O’Neil’s promotion more than six months before a charge was
filed. The concept of constructive knowledge incorporates the
notion of “due diligence.” Notice for the purpose of the 10(b)-
limitation period may be found even in the absence of actual
knowledge if a charging party has failed to exercise reasonable
diligence. That is, the 10(b) period commences running when
the charging party either knows of the unfair labor practice or
would have discovered it in the exercise of reasonable dili-
gence. Leach Corp, supra; Oregon Steel Mills, 291 NLRB 185,
192 (1988). Crosatto testified that on several occasions during
negotiations the Union had impromptu meetings with employ-
ees in the shop during the lunchbreak, in addition to his regular
discussions with Finnerty. The unit was small and all the unit
employees worked at the same location. Thus, a reasonably
diligent union agent would have learned what occurred.
Crosatto testified that no employee told him of the promotions.
If true, this testimony demonstrates a lack of diligence in keep-
ing informed regarding the unit. Moreover, the Respondent
promptly responded to the Union’s requests for information.
The Union could have informed itself of the personnel actions
at issue. These facts establish that the Union had constructive
knowledge of O’Neil’s promotion.
In view of all the foregoing, I conclude that the complaint
should be dismissed with regard to the promotions, wage in-
creases and new positions affecting to Arcos, Ramos, O’Neil,
and Ferrara.
The General Counsel contends that the discussions between
O’Neil and Molignoni that preceded O’Neil’s promotion were
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1256
unlawful direct dealing. In view of the credible evidence that
O’Neil related these discussions to Finnerty, I conclude that the
complaint allegations of direct dealing should also be dismissed
under Section 10(b) of the Act.
C. The Promotion of Gouvaia
On January 4, 1999, the wage rate of unit employee Donny
Gouvaia was increased from $10.50 per hour to $14 per hour
and he was promoted from parts driver to apprentice parts
counter person. The uncontroverted evidence, the credited tes-
timony of Crosatto and the stipulations show that the job of
apprentice parts person was newly created at the time of Gou-
vaia’s promotion without the agreement of the Union and that
the wage rate for apprentice parts person was set without agree-
ment by the Union. Further, Respondent did not notify the Un-
ion of the new position, the wage rate or Gouvaia’s promotion
either before or after they were made.
In his brief, the General Counsel argues that Section 8(a)(5)
makes it an unfair labor practice for an employer to make
changes in mandatory subjects of bargaining without first pro-
viding the certified union with prior notice and an opportunity
to bargain and that wages, promotions, and job classifica-
tions/duties fall within the scope of this mandate. The General
Counsel cites Outboard Marine Corp., 307 NLRB 1333 (1992);
Quik Park Garage Corp., 315 NLRB 111 (1994); Venture
Packaging, 294 NLRB 544 (1989).
The Respondent apparently contends that it was privileged to
promote Gouvaia to a new position unilaterally because the
wage rate he was paid after the promotion was less than had
been offered in negotiations for the classification of parts tech-
nician, that the departure of counter person Tom Nickels and an
increase in business had created an opening, that the promotion
was consistent with past practice and that the decision was a
lawful management decision. No supporting case authority was
cited.
The Board’s standards for assessing whether the Respondent
violated its bargaining obligation regarding the changes affect-
ing Gouvaia are found in Bottom Line Enterprises, 302 NLRB
373 (1991), enfd. sub nom. Master Window Cleaning, Inc. v.
NLRB, 15 F.3d 1087 (9th Cir. 1994), as modified and expli-
cated in RBE Electronics of S.D., 320 NLRB 80 (1995). In RBE
Electronics, the Board stated:10

The Board held in Bottom Line Enterprises, supra, that
when . . . parties are engaged in negotiations for a collec-
tive-bargaining agreement, an employer's obligation to re-
frain from unilateral changes extends beyond the mere
duty to provide notice and an opportunity to bargain about
a particular subject matter; rather it encompasses a duty to
refrain from implementation at all, absent overall impasse
on bargaining for the agreement as a whole. The Board in
Bottom Line recognized two limited exceptions to that
general rule: when a union engages in tactics designed to
delay bargaining and "when economic exigencies compel
prompt action."
. . . .

10 Citations omitted.
Of course, there are certain compelling economic con-
siderations that the Board has long recognized as excusing
bargaining entirely about certain matters. The Board has
limited its definition of these considerations to "extraordi-
nary events which are 'an unforeseen occurrence, having a
major economic effect [requiring] the company to take
immediate action.
. . . .
In cases subsequent to Bottom Line, the Board has
characterized the economic exigency exception as requir-
ing a heavy burden, and as involving the existence of cir-
cumstances which require implementation at the time the
action is taken or an economic business emergency that
requires prompt action.
. . . .
[T]here are other economic exigencies, although not
sufficiently compelling to excuse bargaining altogether,
that should be encompassed within the Bottom Line ex-
ception. . . .Where we find that an employer is confronted
with an economic exigency compelling prompt action
short of the type relieving the employer of its obligation to
bargain entirely, . . . the employer will satisfy its statutory
obligation by providing the union with adequate notice
and an opportunity to bargain. In that event, consistent
with established Board law in situations where negotia-
tions are not in progress, the employer can act unilaterally
if either the union waives its right to bargain or the parties
reach impasse on the matter proposed for change.
. . . .
[A]n analysis accommodating these interests of both
the union and employer is not easily susceptible to bright
line rules. In defining the type of economic exigency sus-
ceptible to bargaining, however, we start from the premise,
derived from the cases discussed above, that not every
change proposed for business reasons would meet our Bot-
tom Line limited exception. Thus, because the exception is
limited only to those exigencies in which time is of the es-
sence and which demand prompt action, we will require an
employer to show a need that the particular action pro-
posed be implemented promptly. Consistent with the re-
quirement that an employer prove that its proposed
changes were "compelled," the employer must additionally
demonstrate that the exigency was caused by external
events, was beyond the employer's control, or was not rea-
sonably foreseeable.

Utilizing the analytical framework described in RBE Elec-
tronics, supra, it is clear that the unilateral wage increase, pro-
motion and creation of the new position of apprentice parts
counter person violated Section 8(a)(5). The Union did not
agree to the wage increase. Since there was no impasse in bar-
gaining, the Respondent was not privileged act unilaterally
because it has not brought itself within the limited exceptions
described in RBE Electronics.
Negotiations proceeded at a somewhat leisurely pace, how-
ever, there is an absence of evidence that the Union engaged in
tactics designed to delay bargaining. Thus, there is no evidence
that the Respondent requested negotiation meetings at shorter
BROADWAY VOLKSWAGEN 1257
intervals, that the Union inappropriately canceled meetings or
that the Union otherwise attempted to delay bargaining. Ac-
cordingly, the Respondent cannot rely on improper conduct by
the Union in negotiations to privilege unilateral changes.
The Respondent apparently argues that economic exigencies
occasioned by increased business and the departure of another
employee compelled unilateral changes. To justify unilateral
action under the economic exigency exception is a heavy bur-
den. Here there is no substantial and credible evidence to sup-
port such a contention. A mere claim of economic exigency
does not satisfy the requirements to establish the sort of busi-
ness emergency required under Bottom Line Enterprises, supra.
The evidence does not establish that the promotion of Gou-
vaia and the creation of an apprentice parts counter position
was an economic emergency. However, even if it is assumed
that the Respondent was confronted with an economic exigency
compelling prompt action short of the type relieving the em-
ployer of its obligation to bargain entirely, the Respondent did
not provide the Union with notice or any opportunity to bargain
and accordingly did not satisfy its statutory obligation.
The contention of Respondent that the wage increase to
Gouvaia was privileged because it was less was less than had
been offered in negotiations for a classification of parts techni-
cian has no merit under well settled law and is not supported by
legal analysis urging a change in the law. The record does not
establish that parts technician is identical to the newly created
apprentice parts counter person. This contention is rejected.
The claim that the promotion was privileged as consistent with
past practice is also contrary to well settled law and is not sup-
ported by legal analysis urging a change in the law. These as-
serted defenses are groundless and are rejected. The creation of
the apprentice parts counter position, the setting of the wage
rate for the position and the promotion of Gouvaia violated
Section 8(a)(1) and (5) of the Act. See Stephenson Haus, 279
NLRB 998 (1986); Frank Leta Honda, 321 NLRB 482 (1996).
D. The Wage Increase Granted to Espinal
The facts regarding the wage increase given to unit employee
Jason Espinal after he completed 90 days of employment are
not disputed. At the time he was hired on September 15, 1998,
he was informed in writing that he would receive an increase to
$9 per hour after 90 days of satisfactory performance. Espinal
signed the document. This promised increase was granted with-
out notice to or bargaining with the Union. Murphy credibly
testified that it was the practice of the Respondent to provide
for a raise for new employees at the completion of their proba-
tionary period. Personnel records illustrating this practice were
received into evidence. The Union was not aware of the prac-
tice. There is no evidence that Respondent did not fully and
promptly comply with information requests. I conclude that
relevant information regarding such increases and the terms
established at the time Espinal was hired were available to the
Union. The Union did not request the information.
The General Counsel points to the lack of notice to the Un-
ion and apparently contends that the Respondent committed a
per se violation. The General Counsel does not acknowledge
that the terms established when Espinal was hired have any
significance in resolving the issue of the legality of the wage
increase.
The Respondent contends that it was privileged to grant the
raise to Espinal because of the hiring agreement, and contends
that the increase was consistent with past practice.
The Supreme Court has distinguished between automatic
wage increases to which the employer has already committed
itself and wage increases that are “in no sense automatic, but
[are] informed by a large measure of discretion.” NLRB v. Katz,
369 U.S. 736, 346. (1962). An employer is required to grant an
automatic wage increase unless it notified the union that it
wished to make a change in the existing conditions of employ-
ment and gave the union an opportunity to bargain over the
change. See City Cab Co. of Orlando, 273 NLRB 1344 (1985).
It is clear that the increase given to Espinal was the sort of
increase Respondent was required to give by the express writ-
ten terms of the documents prepared at the time he was hired.
The complaint does not allege and the General Counsel does
not contend that the terms set at the time Espinal was hired
were unlawful. I specifically find that the issue was not liti-
gated. The only way in which the General Counsel could estab-
lish that the increase was unlawful would be to prove that the
original terms set when Espinal was hired were set without
complying with statutory bargaining requirements and there-
fore, arguably, void. That approach would require a finding of
unlawful conduct which can be charged to be an unfair labor
practice only through reliance on an earlier time-barred unfair
labor practice, which would be inconsistent with the holding in
Machinists Local 1424 v. NLRB, 362 U.S. 411 (1959). See
Consolidation Coal Co., 277 NLRB 545 (1985).
In view of the foregoing, I conclude that the complaint alle-
gations of unilateral changes in the granting of a wage increase
to Espinal should be dismissed.
E. Direct Dealing
The complaint generally alleges that the Respondent imple-
mented wage increases, promotions, and new classifications as
a result of direct dealing with unit employees without specify-
ing which of the alleged changes were the results of direct deal-
ing. The post hearing brief of the General Counsel identifies
only O’Neil as having been an employee who was the object of
direct dealing. There is no evidence of direct dealing regarding
O’Neil within the 10(b) period, as discussed above. Accord-
ingly, I conclude that the complaint allegations of direct dealing
should be dismissed.
F. The Withdrawal of Recognition
Absent exceptional circumstances not involved here, a union
enjoys a conclusive presumption of majority status during the
year following certification. Ray Brooks v. NLRB, 348 U.S. 96
(1954). After expiration of the certification year, an employer
may withdraw recognition on the basis of evidence that the
Union in fact no longer has majority support or on the basis of a
good-faith doubt of majority support based on objective con-
siderations. Such withdrawal may occur only in a context free
of unfair labor practices of the sort likely, under all the circum-
stances, to affect the union's status, cause employee disaffec-
tion, or improperly affect the bargaining relationship itself.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1258
Absent a general refusal to recognize and bargain with the un-
ion, in which case a causal relationship is presumed, a causal
relationship must be established between the unfair labor prac-
tice and employees’ disaffection. Lee Lumber & Building Ma-
terial Corp., 322 NLRB 175 (1996); Rose Hills Mortuary, 324
NLRB 406 (1997); Quazite Corp., 323 NLRB 511 (1997).
The General Counsel contends that Respondent undermined
the ongoing negotiations for an initial agreement covering, inter
alia, wage rates, job duties, and promotional policies, depriving
the Union of the opportunity to represent the unit employees,
necessarily delayed the ongoing bargaining, precluded the par-
ties from being able to bargain in good faith to agreement on
wage rates, and sent the unmistakable message that any benefits
to be obtained from this bargaining would be a long time in
coming. The General counsel argues that Respondent’s unfair
labor practices, as a matter of law, foreseeable resulted in the
loss of employee support for the Union, and fatally tainted the
subsequent employee petition.
The Respondent, in addition to contending that the evidence
did not establish unfair labor practices prior to the withdrawal
of recognition, contends that Respondent was willing to bargain
in good faith with the Union over wages, hours, and working
conditions and that the changes do not negate good faith bar-
gaining. The Respondent argues that the employees’ petition
can only be invalidated if there is a nexus between the alleged
unfair labor practices and the employee petition. Respondent
contends that the General Counsel has presented no evidence of
a causal connection, let alone any specific proof.
The unilateral promotion of Gouvaia involved three aspects
of terms and conditions of employment. These were the job
title, the wage rate and the selection. However, these three is-
sues were intertwined and were part of a single transaction.
There is little specific record evidence on the issue of causal
connection. Gouvaia credibly testified that he told no one of his
wage increase prior the withdrawal of recognition. Presumably
other employees noticed that his duties had changed when he
began working at the parts counter. There is no evidence that
his duties at the parts counter were different than other parts
counter employees and there is no evidence that his being clas-
sified as apprentice was known to any of the other unit employ-
ees. . There is no evidence that any other unit employee was
aware that the Respondent had acted unilaterally in promoting
Gouvaia. There is no evidence that Gouvaia’s was active in the
effort to oust the Union, other than signing the petition.
Under the facts of this case, the evidence does not establish a
causal relationship between the unfair labor practice and the
disaffection of any employee other than Gouvaia. Thus, even
without considering Gouvaia, 10 of 16 unit employees ex-
pressed their wish to no longer be represented by the Union.
Applying the standards articulated by the Board in Quazite
Corp., supra, I conclude that the Respondent was privileged to
withdraw recognition.
The General Counsel contends in the alternative that Board
should overrule Celanese Corp. of America, 95 NLRB 664
(1951), and hold that no employer may lawfully withdraw rec-
ognition from a certified bargaining representative unless, at the
time when the employer is still honoring its bargaining obliga-
tion, a majority of the employees reject union representation in
a secret ballot election conducted at an appropriate time. Under
this proposal, a Board-conducted secret-ballot election would
become the only means by which the presumption of the Un-
ion’s continued majority status after the expiration of the certi-
fication year could be rebutted. Since no such secret ballot
election was held here, the General Counsel argues that Re-
spondent’s refusal to recognize and bargain with the Union
after February 9, 1999, violated Section 8(a)(5) of the Act. I
decline to reach the merits of the arguments advanced by the
General Counsel regarding this issue. It is my duty to decide
the case consistent with Board precedent.
In view of the foregoing, I conclude that the complaint alle-
gation that the Respondent violated the Act by withdrawing
recognition of the Union should be dismissed.
G. The Refusal to Provide Information
By letter dated May 29, 1999, the Union requested that Re-
spondent furnish it with the certain information. Because the
Respondent had lawfully withdrawn recognition on February 9,
1999, it had no duty to respond to the request. Accordingly I
conclude that the complaint allegations of a refusal to furnish
information should be dismissed
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The appropriate unit for collective bargaining is:

All full-time and regular part-time journeymen, apprentice
technicians, service advisors, parts people, and detailers, em-
ployed by Respondent at its Oakland, California, facility; ex-
cluding all sales persons, office clerical employees, guards,
and supervisors as defined in the Act constitute a unit appro-
priate for collective bargaining within the meaning of Section
9(b) of the Act.

4. By unilaterally instituting the classification of apprentice
parts counter person; by unilaterally promoting an employee to
the position of apprentice parts counter person and by unilater-
ally setting the wage rate of the employee promoted to appren-
tice parts counter person Respondent violated Section 8(a)(5)
and (1) of the Act.
5. The Respondent has not violated the Act except as herein
specified.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. In fashioning the remedy I have been
guided by the remedy ordered in Quazite Corp., supra.
[Recommended Order omitted from publication.]