Toyota Of San Francisco

784 TOYOTA OF SAN FRANCISCO Toyota of San Francisco and California Porsche- Audi/Lincoln-Mercury and Autopacific, Inc., d/b/a Autocenter Mazda; William L. Hughson Co., Inc. d/b/a Toyota of San Francisco and British Motor Car Distributors, Ltd. and Euro- pean Motors, Ltd. and Local 960, Automobile and Allied Salemen's Division, International Brotherhood of Teamsters, Chauffeurs, Ware- housmen and Helpers of America . Cases 20- CA-18457, 20-CA-18546, 20-CA-18686, 20- CA-18687, and 20-CA-18689 24 June 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND DENNIS On 30 May 1985 Administrative Law Judge James M. Kennedy issued the attached decision.' The General Counsel filed exceptions and a sup- porting brief, and the Respondent filed an answer- ing brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions and to adopt the recommended Order as modified. We agree, inter alia, with the judge's decision to dismiss the allegations that certain of the Respond- ents violated Section 8(a)(5) by unilaterally imple- menting certain changes in employees' terms and conditions of employment. The record shows that, as a result of coordinated bargaining in 1980, each of the Respondent auto- dealers executed separate but virtually identical agreements with the Union. These 1980-1983 agreements contained a most-favored-nation clause wherein the Union agreed that any more favorable terms agreed to by the Union with any other dealer would automatically become part of the agreements. Prior to the expiration of the 1980- 1983 agreements, the parties began negotiating for ' At the hearing, Cases 20-CA-18310 and 20-CA-18345, Auto Center Mazda and Auto Pacific, Inc, respectively, in the original complaint, were severed and remanded to the Regional Director for Region 20 2 The General Counsel has excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re- versing the findings Chairman Dotson notes that no exceptions were filed to the judge's finding that the descriptive language in the health plan violates Sec 8(a)(1) a new agreement in May 1983.3 During the course of those negotiations, the Respondent Autocenter implemented the terms of its 29 August final offer on 1 September, and the Respondent California Porsche-Audi, on 20 November, implemented the terms of its 17 November final offer. Negotiating continued; however, in mid-December, the Re- spondents learned of the Union's having entered into a contract with the Autohaus Brugger (AB) dealership, which contained, from an employer's perspective, certain more favorable terms than those present in the 1980-1983 agreements and those implemented by California Porsche-Audi in November. In January 1984, the Union commenced an economic strike against the Respondents Auto- center, California Porsche-Audi, and European Motors. During the course of the strike, the Auto- center paid its strike replacements at the AB rate but paid its employees who continued to work during the strike at the rate implemented in Sep- tember. In the meantime, two grievances concern- ing the most-favored-nation clause in relation to the contract proceeded to arbitration. The first grievance involved, inter alia, the implementation of the AB wage rates and fringe benefits in Decem- ber by Respondents California Porsche-Audi, Eu- ropean Motors, and British Motor Car. The arbitra- tor did not have before him the issue of California Porsche-Audi's having earlier unilaterally imple- mented the terms of its 17 November final offer. The second grievance involved, inter alia, the Au- tocenter's implementation of its final offer on 1 September4 and its implementation of the AB rates in December or January 1984. Subsequently, both arbitrators found that the most-favored-nation clauses of the 1980-1983 agreements privileged the Employers to implement the more favorable terms of the AB agreement in December. In the grievance concerning Auto- center, Arbitrator Randall also found that the Au- tocenter had the right in September to adopt the AB rates and could violate the agreement only by implementing terms that did not at least match the terms of AB.5 To the extent that any of the Em- ployers implemented terms to which they were not entitled under AB, both arbitrators found the Em- ployers liable to reimburse employees for any losses, and the arbitrators retained jurisdiction over the amounts due employees. In the instant unfair labor practice proceeding, the General Counsel alleged that various Respond- ents violated Section 8(a)(5) by unilaterally chang- ' Hereafter, all dates refer to 1983 unless noted otherwise 4 Autocenter's 1 September changes are not at issue in this proceeding 5 The arbitrator found that for the most part the September changes were as favorable as the similar provisions in the AB contract 280 NLRB No. 93 TOYOTA OF SAN FRANCISCO ing certain terms and conditions of employment. The judge dismissed these allegations, finding it ap- propriate under Spielberg and Olin6 to defer to the arbitrators' decisions. To the extent that some of the changes provided employees with benefits lower than those of AB, the judge noted that the arbitrators have retained jurisdiction over the remedy. The General Counsel contends that the disposi- tion of the two unilateral changes discussed below implemented by the Autocenter and California Porsche-Audi, respectively, should not be deferred to the arbitrators' decisions because these two changes were not before the arbitrators. Thus, the General Counsel argues that Respondent Auto- center unilaterally created a two-tiered commission system in violation of Section 8(a)(5) by paying its strike replacements at the AB rate and by paying its employees who continued to work during the strike at the rate implemented in September. The General Counsel also argues that Respondent Cali- fornia Porsche-Audi violated Section 8(a)(5) by unilaterally implementing the terms of its final offer on 20 November. With respect to the Autocenter's having institut- ed a two-tiered commission system, we find it ap- propriate to defer this allegation to the decision of the arbitrator. We note that the arbitrator consid- ered both the Autocenter's September implementa- tion of its final offer and its later implementation of the AB rates. While it is true that the arbitrator did not address Autocenter's simultaneous application of each of these two rates, the arbitrator did ad- dress both of these changes separately. The arbitra- tor also retained jurisdiction over the Autocenter's liability to employees for any wages and benefits to which they may be entitled by reason of either of the Autocenter's changes in the terms and condi- tions of employment. In these circumstances, where the arbitrator has addressed both matters separately and provided a remedy for each, we find no purpose to be served by determining whether the Autocenter's simultaneous application of each wage rate was unlawful. We therefore find it appropriate to defer this matter to the decision of the arbitrator. With respect to the allegation concerning Cali- fornia Porsche-Audi's having unilaterally imple- mented the terms of its final offer on 20 November, we note that this matter was not before the arbitra- tor and for that reason we cannot defer this matter to the arbitrator's decision. Nevertheless, except with respect to California Porcshe-Audi's elimina- tion of Sunday premium pay, we shall dismiss this e Spielberg Mfg Co, 112 NLRB 1080 ( 1955), Olin Corp , 268 NLRB 573 (1983) 785 allegation because we agree with the rationale ap- plied by Arbitrator Randall in considering similar conduct on the part of the Autocenter in Septem- ber. Thus we agree that the contract's most-fa- vored-nation clause which was in effect in Novem- ber privileged California Porsche-Audi to imple- ment terms at least equivalent to those of the AB contract. We note that the November changes pro- vided employees with a draw and commission rate more generous than those of AB. However, we note that the elimination of Sunday pay was incon- sistent with AB. In these circumstances, the Gener- al Counsel established a prima facie case by show- ing that the elimination of Sunday pay was incon- sistent with the terms of the AB contract. Inas- much the Respondent failed to justify this depar- ture from the AB contract, we conclude that Re- spondent California Porsche-Audi violated Section 8(a)(5) by eliminating Sunday pay. We shall modify the respective recommended Order accordingly.? ORDER The National Labor Relations Board adopts each of the recommended Orders of the administrative law judge and hereby orders each of the Respond- ents, San Francisco Autocenter (including Autopa- cific, Inc., d/b/a Autocenter Mazda, William L. Hughson Co., Inc. d/b/a Toyoto of San Francis- co); California Porsche-Audi/Lincoln-Mercury; European Motors, Ltd.; British Motor Car Distrib- utors, Ltd., all of San Francisco, California, their officers, agents, successors, and assigns, shall take the action set forth in the applicable recommended Orders, as modified with respect to Respondent California Porsche-Audi/Lincoln-Mercury as fol- lows. 1. Substitute the following for paragraph 1(f). "(f) Unilaterally changing employees' terms and conditions of employment by discontinuing Sunday pay, and by implementing new work rules without providing the Union with notice and an opportuni- ty to bargain over them." 2. Substitute the following for paragraph 2(b). "(b) Make whole employees for any losses they may have suffered as a result of Respondent's uni- lateral discontinuance of Sunday pay, with interest, ' Chairman Dotson, contrary to his colleagues, would dismiss this alle- gation In this regard, the Chairman notes that the changes implemented in November provided employees with a more generous draw and com- mission rate than those provided for in the AB contract In these circum- stances, while the elimination of Sunday pay may have been inconsistent with All, the Chairman would find that the General Counsel has not es- tablished that the changes implemented in November, considered as a whole, were not equivalent to the AB rates Accordingly, the Chairman would find that the General Counsel has not established that the changes implemented in November were unlawful unilateral changes rather than changes consistent with the agreed-to most-favored-nation clause of the 1980-1983 contract 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the manner set forth in the remedy section of the judge's decision." 3. Substitute the attached Appendix D for that of the administrative law judge. MEMBER DENNIS, dissenting in part. Contrary to my colleagues, I cannot adopt the judge's decision. I believe the judge failed to make findings of fact and credibility resolutions on evi- dence crucial to determining whether the Respond- ents' contractual offer was conditioned on the Union not striking. Further, the General Counsel alleged, in part, that certain Respondents discrimin- atorily treated strikers different from nonstrikers in applying a most-favored-nation clause . The judge, apparently misconstruing the allegation, failed to discuss the General Counsel's evidence on this alle- gation. Instead, the judge deferred to two arbitra- tors' decisions. The arbitrators, however, consid- ered only a contractual issue that , if the General Counsel's evidence is credited , is not parallel to the statutory issue the complaint alleged . Consequent- ly, it is improper to defer under Olin Corp., 268 NLRB 573, 574 (1984). I would remand the case to the judge for find- ings concerning the evidence he failed to discuss, including how (if at all) the new evidence affects other issues.' I Although preferring a remand to the judge to decide all issues, for the purpose of forming a majority, I join Member Johansen in finding a violation with respect to the Sunday pay unilateral change issue. APPENDIX D NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT threaten employees with dis- charge or loss of their jobs if they choose to engage in a protected strike. WE WILL NOT tell employees that strikes are futile and useless. WE WILL NOT urge or suggest that employees decertify the Union as their collective-bargaining representative and/or solicit employees to resign their union membership. WE WILL NOT encourage employees to follow the lead of employees who choose not to strike or promise nonstrikers that we would not sign a con- tract with the Union unless the Union grants am- nesty from union discipline to nonstrikers. WE WILL NOT deny striking employees commis- sions they had earned, at least in part, for vehicle sales on orders fmalized prior to the strike but where the vehicle was delivered to the customer during the strike. WE WILL NOT engage in bad-faith bargaining tactics such as ultimatum bargaining, including the use of regressive proposals in circumstances where such ultimatums deprive the Union of a fair oppor- tunity to digest and discuss each proposal. WE WILL NOT unilaterally change employees' terms and conditions of employment by discontinu- ing Sunday pay, and by implementing new work rules without providing the Union with notice and an opportunity to bargain over them. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL make whole each striker for lost com- missions, plus interest, he or she should have earned had they not engaged in a strike on January 4, 1984. WE WILL make whole employees for any losses suffered as a result of our unilateral discontinuance of Sunday pay, with interest, and WE WILL rescind the work rules implemented in January and Febru- ary 1984 and expunge any discipline that has been imposed under them. WE WILL, on request, bargain collectively in good faith with Local 960, Automobile and Allied Salesmen's Division, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, in the following appropriate unit and embody in writing and sign any agreement or un- derstanding that is reached: All new and used car salespersons employed by California Porsche-Audi/Lincoln-Mercury at its San Francisco, California location, ex- cluding all other employees, guards and super- visors as defined in the Act. CALIFORNIA PORSCHE-AUDI/LIN- COLN-MERCURY TOYOTA OF SAN FRANCISCO 787 George Carson II, for the General Counsel. Robert G. Hulteng and R. Brian Dixon (with Scott D. Rechtschaffen on brief) (Littler, Mendelson, Fastiff & Tichy), of San Francisco, California, for the Respond- ents. Franklin Silver (Beeson, Tayer & Silbert), of San Francis- co, California, for the Charging Party. event it is admitted that the named businesses have annual gross revenues in excess of $500,000 and that they annually purchase goods and materials valued in excess of $50,000 directly from points outside California. Ac- cordingly, Respondent Autocenter admits and I find that they are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. DECISION JAMES M. KENNEDY, Administrative Law Judge. This case was tried before me in San Francisco , California, on 8 trial days beginning July 17, 1984, and ending Septem- ber 14, 1984. It is based on a series of complaints issued by the Regional Director for Region 20 of the National Labor Relations Board on December 29, 1983, and March 23, 1984. The complaints were ordered consoli- dated for hearing on the latter date. They are all based on charges filed by Local 960, Automobile and Allied Salesmen's Division, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica (the Union) on various dates and which were subse- quently amended . The complaints allege that various named automobile dealers have engaged in certain viola- tions of Section 8(a)(1), (3), and (5) of the National Labor Relations Act. Issues The principal issue is whether the automobile dealers had left open a January 3, 1984 proposal, which could be accepted on February 4, 1984, after a 30-day strike. Sub- ordinate to that principal issue are various allegations of unilateral changes, some being implemented in 1983 prior to the strike and some being implemented in 1984 after the strike ended. In addition, the employers are accused of violating Section 8(a)(3) by withholding certain com- missions and by billing back allegedly overpaid commis- sions. One employer, the Autocenter, is accused of dis- charging a salesman in violation of Section 8(a)(3). Two of the Employers, the Autocenter and California Porsche-Audi, are also accused of having engaged in various violations of Section 8(a)(1) of the Act. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. The General Counsel and Respondents have filed briefs and they have been carefully considered. Based on the entire record, as well as my observations of witnesses and their demeanor, I make the following FINDINGS OF FACT 1. RESPONDENTS' BUSINESSES A. The Autocenter In 1983 several dealerships, all corporations , but com- monly owned by Martin Swig, consolidated their oper- ations at a facility known as the San Francisco Auto- center (Autocenter). These include William A. Hughson Co. d/b/a Toyota of San Francisco and Autopacific, Inc. d/b/a Autocenter Mazda. In addition, there are other dealerships owned by Swig at that location. In any B. British Motor Car Distributors, Ltd. British Motors (British) admits that at all material times it has been a California corporation operating an automobile dealership in San Francisco. It further admits that its annual gross revenues exceed $500,000, and it an- nually purchases and receives goods and materials valued in excess of $5000 from points located outside California. Accordingly, it admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. C. European Motors, Ltd. European Motors (European) admits that at material times it has been a California corporation operating an automobile dealership in San Francisco. It further admits that its annual sales exceed $500,000 and it annually pur- chases goods and materials valued in excess of $5000 from points located outside California. Accordingly, it admits, and I find, that it is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. D. California Porsche-Audi, Inc./Lincoln-Mercury Respondent California Porsche-Audi/Lincoln-Mercury (Cal Porsche-Audi) admits that at all material times it has been a California corporation operating an automobile dealership in San Francisco, that its annual gross revenue exceeds $500,000, and that it annually purchases goods and materials valued in excess of $5000 from points out- side California. Accordingly, it admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Each of the Respondents admits, and I find, that the Union, at all material times, has been a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Prior to 1980, most of the unionized auto dealerships in San Francisco bargained on a multiemployer basis. In the 1980 negotiations, they engaged instead in "coordi- nated bargaining" under the umbrella of an association created by its chief negotiator, Attorney James Carter. That group was known as Dealers Auto Sales Associa- tion (DASA). As a result of that negotiation, each of the DASA members signed separate but identical collective- bargaining contracts with the Union covering salesper- sons. That contract was to expire on June 1, 1983, unless extended by the act of engaging in collective bargaining. 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 31 of that agreement, the expiration clause, states in relevant part: This Agreement shall be in effect on June 1, 1980, and shall continue in effect until June 1, 1983 and from year to year thereafter for like terms, subject, however, to revision by notice in writing by either party to the other sixty (60) days prior to the anni- versary date thereof. During such 60-day period, conferences shall be held looking toward a revision of this Agreement. If the negotiations extend beyond the anniversary date or expiration of the Agreement, no change shall be made in any terms or conditions of employment unless expressly agreed to by the parties or until negotiations are terminated by economic action of either party after first giving forty eight (48) hours written notice thereof. All revisions and wages shall be effective as of the anniversary date of said Agreement. [Emphasis added.] As provided by the contract, the parties began negoti- ating prior to its expiration . The first session occurred on May 13, 1983. It is undisputed that on that date Carter told the Union's chief executive officer, Rudy Ortega, that the DASA employers whom Carter represented would be negotiating individual contracts and would not be engaging in multiemployer bargaining. Simultaneous- ly, Carter advised that it was conceivable that individual employers would take somewhat different positions re- garding matters of particular concern to them. Further- more, there was a DASA negotiating committee that was created to assist Carter. The head of that committee was Jim Tracy, the president of Cal Porsche-Audi. It is further undisputed that union negotiator Ortega had two principal objectives in mind. The first was to obtain a "just cause" clause in the new agreement that would protect employees from "at will" discharges. Second, he thought that it would be tactically appropri- ate to obtain first a collective-bargaining contract from the Martin Swig-owned companies at the Autocenter. In fact Ortega chose to ignore the initial proposals of all the other dealers in order to pursue a contract with the Au- tocenter. As a result, Ortega spent a great deal of time with Carter and Swig between May and late October. The meetings during that period are not described with great detail, but it is clear that Ortega proposed in various forms a just cause clause and that Carter , representing Swig and the others, was adamant that no such clause be included. Little else was discussed during those months. In any event, because the negotiations had continued past the contract expiration date, by the terms of the ex- piration clause, the contract continued to be in effect at all the affected dealerships. This included the Respond- ents herein, the Autocenter, European, British, and Cal Porsche-Audi. Other dealers were affected as well, in- cluding Royal Volvo, Lucas Cadillac, and Boas Motors. In October, Ortega decided to focus once again on the other dealerships and to put the Autocenter on the back burner. Accordingly, meetings were held with Carter, representing the other dealerships. Jim Tracy of Cal Porsche-Audi took a lead role as head of the Employers' committee. Meetings were held on November 17, 18, 19, and 22 and December 16, 1983. At the December 16 meeting Swig reappeared and withdrew the Autocenter's earlier offer, lining up with the Tracy-led group. Meetings were conducted also on December 20 and 22, as well as the final prestrike meeting of January 3, 1984. At the De- cember 20 meeting, Carter, pursuant to a request by Jules Barsotti of European, asked Ortega and Chuck Mack, the Joint Council of Teamsters president who had become the Union's chief negotiator in late October, if it was true that the Union had signed an agreement with Autohaus Brugger, a Mercedes-Benz dealership in Red- wood City, some 25 miles south of San Francisco. Euro- pean and Autohaus Brugger are direct competitors, both selling Mercedes-Benz automobiles . Ortega agreed that a contract had recently been signed with Autohaus Brag- ger. Carter asked for a copy. Barsotti had reason to be- lieve that the Autohaus Brugger contract was more fa- vorable to that dealer than any contract proposal cur- rently being discussed by the DASA group. The then-yet-to-expire 1980 contract contained a most- favored-nation clause, section 21. In pertinent part, it states: The Union agrees that any more favorable terms agreed to by the Union with any other dealers shall automatically become a part of this agreement. Ortega agreed to send Carter a copy of the Autohaus Brugger contract. It is in evidence as Respondent's Ex- hibit 5. On its face it appears to have a term of July 1, 1980, through June 30, 1983. However, in July 1983, the contract had been extended without change for 3 years. On December 20, Carter immediately handwrote a grievance demanding as a remedy the reduction of com- missions and fringe benefits to be consistent with the Au- tohaus Brugger contract. The grievance purports to be on behalf of all DASA members as well as Royal Motors. Ultimately, however, it only covered the Auto- center. Carter handed it to the Union at that meeting. In addition, Carter asked to expedite any arbitration which might result. At the December 22 meeting the most-favored-nation question was discussed in detail, but additional discus- sions occurred as well. Among other things, Mack asked the dealers to waive application of the most-favored- nation clause. At the end of that meeting Ortega gave Carter a document announcing that Local 960 intended to engage in a strike against DASA members sometime after December 27. No strike occurred on that date, but the parties, in an effort to avoid one, scheduled another meeting for Janu- ary 3, 1984. At that meeting Carter and Tracy presented what they viewed as a last-ditch offer. The offer was re- jected and the strike began on January 4 at the Auto- center, Cal Porsche-Audi, and European. During the strike two meetings were held under the auspices of the Federal Mediation and Conciliation Serv- ice. The first was on January 24, the second on January 30. Shortly before the January 24 meeting Boas Motors TOYOTA OF SAN FRANCISCO settled with the Union. The January 24 meeting was principally an effort by the mediator to attempt to relay positions between the two groups that were physically separated. No agreement was reached and it is unclear whether any proposals were actually transmitted. There is testimony that the Union offered the Boas contract, but at least some of the dealers do not recall that propos- al. On January 30 the parties met again at the FMCS office. On this occasion Carter had been replaced as chief negotiator by Attorney John Skonberg. Skonberg advised that he represented the four Respondents herein. At that time he filed another most-favored-nation griev- ance regarding the Autohaus Brugger contract, particu- larly invoking its no-strike clause . He, too, demanded ex- pedited arbitration. There is intense conflict over wheth- er he also made a proposal substituting the most-favored portions of the Autohaus Brugger contract for any previ- ous, but still outstanding, offers. In any event, Union Attorney Frank Silver told Skon- berg that he thought the invocation of the no-strike clause through the most-favored-nation clause to be a frivolous contention. After some discussion the union of- ficials caucused. Later, they responded by offering inter- est arbitration over the entire contract. Skonberg imme- diately rejected that idea. Thereupon Mack proposed the Boas Motors agreement. Skonberg rejected that too. His rejections were on the grounds that the companies were entitled to the most favorable terms contained in the Au- tohaus Brugger contract. The meeting then ended. Later that day Ortega sent letters to Cal Porsche- Audi, British, and European in which he purported to accept their allegedly still outstanding offer of January 3-the prestrike offer. No letter was sent to Swig of the Autocenter because the January 3 proposal was not made on his behalf. Ortega's attempted acceptance of the January 3 offer triggered a flurry of telegrams, letters, and telephone calls in which those three Respondents denied that there was any offer of January 3 still outstanding that the Union could accept. The foregoing is a basic outline of events. Specific evi- dence supporting each version will be detailed below. For organizational purposes, I have determined that it is best to first deal with the 8(a)(1) and (3) allegations aimed at the Autocenter and Cal Porsche-Audi, to be followed by a discussion of the alleged breach of the bar- gaining obligation by all four Respondents. The latter is complicated by the rulings of two arbitrators who have retained jurisdiction for remedy purposes. B. Alleged Restraint and Coercion at the Autocenter The General Counsel called two Autocenter employ- ees in support of the 8(a)(1) allegations there. The first was Gene Dooley who is also alleged to have been un- lawfully discharged on July 31, 1983. He worked at the Toyota dealership. He was the Union's shop steward, al- though relatively inactive. The second was Jick "Jake" Ng. Ng worked at the Mazda dealership. Dooley testified that during late 1982 and the first part of 1983 he had a series of approximately five conversa- tions with Swig. Some of these were at a coffeeshop 789 near the old Van Ness Avenue location and two oc- curred after Swig consolidated his dealerships at the Au- tocenter location on 16th Street in June. The pre-June conversations are received as background only because they are clearly outside the 6-month limitation period set forth in Section 10(b) of the Act. Dooley's frame of reference was the expiration of the contract, on May 31, 1983. He said that approximately 6 months before, apparently in late 1982, he had three con- versations with Swig. In the first, occurring at the cof- feeshop, Swig asked him how "we" could possibly work out a way in which the health and welfare and pension plans could be taken away from the Union and put under separate management. Dooley simply replied that such an occurrence would be "impossible." The second con- versation, 2 weeks later, occurred at Dooley's desk. Ac- cording to Dooley, Swig observed that the $150 monthly retirement benefit did not seem like much and asked Dooley if he thought employees could do better than the Union by investing their retirement contributions else- where. Dooley made a noncommittal reply. Approxi- mately 3 weeks after that, again at the coffeeshop, Swig apparently asked Dooley if he had any ideas where the pension money could be invested. Dooley remembers saying such an occurrence would "never happen." According to Dooley no further conversations oc- curred until July, after the dealership moved to its cur- rent location. Dooley was vague about when the next conversation took place, but said Swig "suggested" put- ting the retirement money into an IRA account. He also asked Dooley why everyone "wanted to stay with the union contract situation." Dooley replied that he thought people wanted to stay because some of the dealers were unscrupulous. Swig agreed, but asserted that he was not one of those. A short time after that, apparently at a time when Swig was negotiating with the Union, he told Dooley that his companies had made an offer to the Union to invest the retirement money elsewhere. Dooley also testified that he had two conversations with Ed Richard, the Autocenter' s general manager, sometime in July. The first occurred in the hallway at the Autocenter. Dooley testified, "I don't know how the conversation started out, but Mr. Richard said, `Why don't you guys wise up,' something to that effect, 'on this union thing?' And I didn't answer to any extent, and commented on the fact that I thought the Chrysler line was going to be a pretty sharp looking line this year." He says Richard then offered to transfer him to a Chrys- ler dealership. Dooley replied that he had not made the remark for that purpose, but simply to observe that the Chrysler dealership had automobiles in stock whereas the Toyota store did not. Dooley says Richard then taunted, "Why don't you call Rudy Ortega? Maybe he can get some automobiles for you." Richard testified that he told Dooley the Autocenter would be selling Chryslers soon and asked if Dooley was interested. Richard said Dooley laughed at the idea; he said the entire conversation was in a joking tone. Rich- ard recalls that on that particular day the Toyota dealer- ship was short of automobiles and he suggested Dooley 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD see Rudy Ortega about obtaining some. He remembers Dooley laughed at that remark, too. Richard does agree that he suggested Dooley "wise up" but says he did so in the context of saying he thought it was improper of the Union, which represented 35 Autocenter employees, to bargain for them without having a single one on its steering committee.' Thus Richard's version is somewhat different from Dooley's. Dooley says he had a second conversation with Rich- ard a short time thereafter, which was basically a dupli- cate of the first. This one occurred in July. He remem- bers Richard asking, "Why don't you wise up over this union thing?" He says Richard followed with a second question, "Why don't you dump the Union?" Richard denies ever telling Dooley to dump the Union. I note that Dooley testified that he was on vacation during the first 10 days of July and that all the conversa- tions that he described, except for the last two conversa- tions with Swig and the very last one with Richard, oc- curred in June or before. Dooley was not particularly specific about the dates in June and could only estimate. The charge in this particular case was not filed until Oc- tober 25, 1983, and thus the 10(b) period did not begin to run until April 25, 1983. Clearly, therefore, the conversa- tions Dooley described with Swig as beginning 6 months before the contract's expiration must have been outside the 10(b) period. Thus, I conclude that the incidents in which Swig supposedly asked Dooley how the new health and welfare and pension plans could be taken away from the Union were outside the 6-month limita- tions period. Additionally, it appears that the second and third conversations later were likewise outside the limita- tions period. At best the third conversation could only have occurred as late as March even giving Dooley the benefit of some imprecision in terms of dates. Thus I consider these three conversations only as background. I again observe that Dooley was not particularly pre- cise when the fourth and fifth conversations occurred. According to him, the fourth conversation was after the move from the Van Ness location to 16th Street. That occurred in June. He says he thinks the conversation was in July, but he was on vacation during the first 10 days of that month. Moreover, he was discharged at the end of the month. Accordingly, I think that it is more likely that the conversation occurred in June. During that dis- cussion, he says Swig suggested putting the retirement money in an IRA account and also asked why everyone wanted to stay under a union contract. The complaint alleges that Swig "promised" employ- ees that if they would forfeit coverage under the union health and welfare program, Respondent would open IRAs. Frankly, Dooley's testimony does not rise to that level. However, it does appear that his statement, as it is undenied, amounts to an attempt to directly deal with an employee, thereby bypassing the Union and tending to undermine it. Accordingly, I find that such conduct vio- lated Section 8(a)(1) of the Act. Such conduct is also violative of Section 8(a)(5) as an act of bad-faith bargain- ing. ' Despite Dooley's status as a shop steward, he was not a member of the bargaining committee, neither was any other Autocenter employee With respect to the question, which Dooley says Swig posed ("Why stay with the Union?"), I observe that the complaint does not specifically allege it to be a violation. In any event it seems unlikely , given Dooley's status as a union steward, that it had any coercive impact. See Ross- more House, 269 NLRB 1176, 1177-1178 (1984). Regarding the fifth conversation Dooley had with Swig, Dooley says Swig told him in the hallway that his companies were making an offer to the Union to invest the retirement money elsewhere. The statement here is somewhat inconsistent with Swig's earlier suggestion that retirement moneys might be better invested in IRAs. Nonetheless, I do not see that this incident falls into the category of direct dealing or a promise. Instead, it was simply a remark about what offer had been made at the bargaining table. Insofar as the Richard remarks are concerned, the first appears to have occurred in June. There is a credibility conflict between Richard and Dooley here. Nonetheless, Richard admits that at the end he suggested that Dooley call Ortega to see if Ortega could get him cars. Both concede that the remark was made facetiously. Nonethe- less, it seems to have been an unnecessary injection of the Union into the conversation, having as its sole pur- pose the disparagement of Ortega. I do not, however, regard Richard's statement as a suggestion that Dooley transfer elsewhere if he wanted to associate with the Union as alleged in the complaint. Furthermore, I am un- impressed here with Dooley's recitation of the facts. He could not fully recite them on direct and embellished on cross-examination. On direct he said that Richard had told him on one occasion to wise up and dump the Union. In conclusionary terms, he said the second con- versation was a "duplicate." On cross-examination, he added that Swig had told him the same things. In ob- serving Dooley on the stand, I was unimpressed with his testimony here both because of the embellishment but also because of his apparent lack of sincerity. According- ly, I conclude that Dooley's testimony with respect to the allegation that Richard told him to wise up and dump the Union (as well as his testimony that Swig said the same thing) is not as believable as Richard's version. This allegation should be dismissed. The General Counsel's second employee witness, Jake Ng, testified only about matters occurring in late Decem- ber after the discovery of the Autohaus Brugger contract and during the period immediately preceding the strike. Ng had been hired in March 1983 by the Autocenter's Mazda dealership. The complaint alleges that the Autocenter, acting through the Mazda dealership's sales manager, Joe Lenzi, at a December 29, 1983 meeting, threatened employees with loss of sales commissions and loss of health and welfare benefits if the employees remained supportive of the Union and solicited employees to resign from the Union. Ng testified that in late December Lenzi conduct- ed a meeting of the sales staff in his office. According to Ng, Lenzi said, "If you go on strike, you will not get paid for all the orders you have taken." In other words, according to Ng, if cars were delivered during the strike the salespeople would not get paid. He also testified that TOYOTA OF SAN FRANCISCO Lenzi said somehow the health plan would be discontin- ued. He could not describe that averment in any detail. He remembers Lenzi was reading something to the staff, but the document was not distributed. Then, according to Ng, Lenzi turned around and said something like "If you want to resign from the union, you can sign this sheet here." The sheet was not distrib- uted. When Ng later looked at it, it said something to the effect that if an employee wished to resign from the Union he or she had to go to Local 960 to talk to Rudy Ortega. On cross-examination with respect to the purported loss of health and welfare benefits, Ng admitted that he could not tell the difference between "You're not going to have health coverage if there is a strike" from "We're going to abolish the health and welfare plans if there is a strike." It is undisputed that health and welfare coverage is based on the number of hours worked each month; if an employee does not work the required minimum amount of hours during a given month his or her health and welfare coverage can be lost unless the employee covers from personal funds. Ng's inability to distinguish between the two versions is significant. He said Lenzi was reading as he described the health and welfare situation. Moreover, Ng admitted he did not understand the difference between losing ben- efits because of a decision not to work as opposed to a penalty for engaging in a strike. Based on Ng's demon- strated inability to perceive the difference between the two versions, I am unable to conclude that the General Counsel has proven this allegation. I recognize that I am principally concerned with the statement Lenzi allegedly made, not with the health plan eligibility rules, but to satisfy the burden of proof it is necessary that the witness be able to demonstrate perceptual competence. This wit- ness did not do that and even though Lenzi did not testi- fy to the contrary, I am not confident enough of Ng's version to conclude that a violation has occurred. With respect to the second allegation, that employees would not be paid for cars delivered during the strike, which had been ordered prior to the strike, I shall defer that discussion to the 8(a)(3) section of this decision. It is true that Ng's testimony about Lenzi's solicitation of employees to resign from the Union is not well inte- grated. Yet even his final version is undenied. In that version he said Lenzi told employees who wished to resign from the Union to see Ortega. This appears to be a suggestion that came from management and was not in response to an unsolicited employee question . In such circumstances, the Board has consistently held such im- portunities to be unlawful. Such decisions are not to be generated by management suggestions . City Supply Corp., 217 NLRB 950, 953 (1975); Deutsch Co., 180 NLRB 8, 20 (1969), enfd. 445 F.2d 901 (9th Cir. 1971). On December 23, Swig sent a letter to all Autocenter employees, including Ng. This letter was 3 days after the discovery of the Autohaus Brugger contract. It referred, however, to a unilateral change the Autocenter had im- plemented on September 1, 1983. After the September 1 compensation program was implemented, the Union filed a grievance. A hearing had been held on December 16, 1983, to determine whether the Autocenter was privi- 791 leged to have implemented that program. Approximately 4 days after the arbitration hearing , the Employers dis- covered the Autohaus Brugger contract. Subsequently, Swig wrote the letter in question . It advised the employ- ees that the arbitration hearing had been held saying if the Union won, the Autocenter would revert to the as- yet unexpired collective-bargaining contract . If that oc- cuffed, he said, the Autocenter would invoke the most- favored-nation clause of that contract, permitting it to reduce the commission rate to 25 percent and that the re- duced commission rate would apply retroactively for 120 days.2 In addition, he pointed to the smaller monthly draw and fringe benefits of the Autohaus Brugger con- tract saying those matters would be recomputed on the same basis. He said this would require employees to refund what he now characterized as overpaid commis- sions and fringe benefit premiums . He went on to say that if the Union lost the arbitration then the Autocenter would "re-evaluate [its] position in the light of the events of the past months." Attached to the letter was a memo from Attorney Carter, the employer's chief negotiator, describing the nature of the modifications, which Carter believed could be made under the most-favored-nation clause. In addi- tion, there was a statement, individualized for each em- ployee, asserting that he or she may owe the Autocenter a specific amount of money in overpaid commissions. In Ng's case that amount was $4258. All employees re- ceived similar letters. The complaint alleges that this letter "threatened the employees with loss of benefits as a reprisal for pursuing grievances." Frankly, I am most unimpressed with that theory. It does not seem that this was a reprisal for the employees' pursuit of a grievance. Indeed, absent the dis- covery of the apparent right to invoke the Autohaus Brugger contract under the most-favored-nation clause only 3 days before, the letter never would have been written. It is not a reprisal for the grievance, but is in- tended to influence the Union's bargaining stance by squeezing the affected employees. It is, instead, an effort to undermine the Union's position taken at the bargain- ing table. It is irrelevant that the most-favored-nation clause may have given the Autocenter the right to do what it said it could do. Swig had no right to directly pressure the employees into influencing the Union's stance at the bargaining table. This letter had no other purpose than to bypass the Union and to undermine its collective-bargaining position. Accordingly, I find that the December 23, 1983 letter written by Swig violated Section 8(a)(1) as well as (5) of the Act, as described. Although additional independent 8(a)(1) allegations appear in the two Autocenter complaints, no evidence was adduced regarding them; they will be dismissed. C. Restraint and Coercion at Cal Porsche- AudilLincoln-Mercury In support of the independent 8(a)(1) allegations against Cal Porsche-Audi, the General Counsel called 2 The 120-day period derives from language in the "stale claims" clause of the grievance-arbitration article of the contract 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD three employee witnesses, Jack Frank, Donald Camp, and William Ellingham. It should be observed that there is testimony in the record with respect to coercive state- ments made by management as early as April 1983. However, as the charge was not filed until November 29, 1983, statements prior to May 29, 1983, are outside the limitations period set forth in Section 10(b). According to salesman William Ellingham, Cal Porsche-Audi President Jim Tracy, during April 1983, at a sales celebration held in a San Francisco restaurant, told the employees that the Union was "absurd," they did not need it, that it was he who took care of the em- ployees. In addition, according to Ellingham, in May, General Manager Peter Kolinsky said it was time to de- clare economic warfare on the employees. Those state- ments were either denied or placed in a different context. In any event they are outside the limitations period and will not be given independent consideration. Salesman Jack Frank testified that around November 20, 1983, Tracy conducted a meeting of employees to de- scribe a proposal which the Employers had made to the Union on November 17. During the meeting another salesman, Anderson, asked what the employees could do to avoid a strike. Frank says Tracy replied, "Well, one of the things you could do is resign from the Union." Tracy testified he met with the salespeople on Novem- ber 20 and read them verbatim the November 17 offer. He remembers Anderson asking how an employee would go to work if there was a strike. Tracy says he told An- derson to consult an attorney, that there were ways of resigning from the Union. Under either version, it does not appear that a request for information regarding resigning came from an em- ployee. It is clear that Anderson asked Tracy a question, but not regarding resignation. Tracy replied either that an employee could resign from the Union or could con- sult an attorney about the way one goes about resigning from the Union. In either case Tracy suggested resigna- tion as a way to avoid a strike. He was not innocently advising them of a statutory right. As with the Auto- center, such a suggestion emanating from management violates Section 8(a)(1). City Supply Co. and Deutsch Co., both supra. Frank went on vacation in December, returning on December 16. At that time he had a conversation with Kolinsky in which he says Kolinsky asked Frank if his wife was working. Frank's wife was also an automobile salesperson who worked for another dealership. When Frank asked why, Kolinsky said that Frank might need the money she was earning. Frank says he then terminat- ed the conversation. Frank admits he and his wife were engaged in friendly competition to see who would earn the most money each month. Their competition had become a common topic of discussion among Frank and his coworkers. Kolinsky testified that during November and Decem- ber he had two or three conversations with Frank re- garding his wife. Kolinsky could not be too specific with respect to what occurred in each conversation but said that usually he asked Frank how many cars he had sold that month and then would ask him how his wife was doing. Usually, Kolinsky said, Frank replied that he would have to work hard to catch up to her. Kolinsky recalls that once in December, after Frank had returned from vacation, Frank asked how negotiations had gone during his absence. Kolinsky says he replied things (ne- gotiations) were getting pretty "tough" and Frank had better sell some cars to make some more money. Kolin- sky added he hoped Frank's wife made a lot in case there was a problem. Frank testified that about 2 days later on December 18 or 19 Kolinsky remarked that if the salesmen were loyal to the Company the Company would be loyal to them. Frank asked what he meant. Kolinsky replied that if an employee chose to work during the strike, the Company would not sign a contract until the Union granted amnes- ty from union discipline to that employee. Kolinsky agreed that he had said, perhaps during his first postvacation conversation with Frank, but certainly at other times, that if salesmen were loyal to the Compa- ny, the Company would be loyal to them. However, he denies ever saying that Cal Porsche-Audi would not sign a contract until the Union agreed not to fine employees who worked during the strike. Frank also testified that on separate occasions two other management officials spoke to him about his wife working. He says about the same time as the other inci- dents, Used-Car Manager Dan Miller told him he hoped Frank's wife was working because he would probably need the money. Miller went on to say that the employ- ees might lose their jobs if they went on strike. Similarly, Frank says, Sales Manager Herb Weiss told him in mid- December, after Frank's vacation, that he hoped Frank was in good graces with his wife because he would need her income as a strike was coming. Miller agreed that he had a similar conversation with Frank. However, he says he told Frank that if a strike came it would be easier on him because his wife made good money. Miller denies telling Frank that he would be fired if he engaged in a strike. Weiss, too, agrees to having had such a conversation. He said it was in the presence of about half the sales staff on the floor. He re- members telling Frank to "hang on to his wife and not to divorce her since she made so much money, otherwise his income would go way down." Weiss was unable to recall anything further of the conversation but denies saying Frank would be cutting his throat with respect to a strike or that with a strike Frank would not be around much longer. Obviously, the income of Frank's wife was a subject of banter on the showroom floor. Moreover, each of the managers seized on it as a device to motivate Frank to sell automobiles. Indeed, the Union at this point had taken a strike vote and things looked pretty bleak. The subject of a strike was no doubt on everyone's mind. In each case, according to Frank, the management official either urged him to sell more cars or observed that he could withstand a strike better than some of the others because of his wife's income. Frankly, those conversa- tions do not appear to be threatening or coercive in any way. Instead they were simply observations that Frank could either improve his ability to withstand a strike by harder work or to observe that he had a better ability to TOYOTA OF SAN FRANCISCO withstand a strike because his wife was working. The only statements approaching coercion are Weiss' sup- posed amnesty promise and Miller 's statement that the employees might lose their jobs if they struck. Both Weiss and Miller specifically deny the remarks. I recognize, in fact, no one ever lost his or her job as a result of the strike. Exercising hindsight Miller's state- ment, therefore, seems somewhat improbable . Nonethe- less, in comparing the demeanor of the two witnesses, I believe Frank's testimony should be credited. He was sensitive to the situation and likely to have recalled the incident accurately if it occurred . On the other hand, Miller was careless with his phraseology and I believe he made a careless statement even though it was not con- sistent with either company policy or the law. Accord- ingly, I conclude that Frank's testimony should be cred- ited over that of Miller. Thus, I find that Miller told Frank that employees might lose their jobs in the event of a strike . If Miller had been clearly describing the right of employers to replace strikers , a statement to that effect would have been lawful. Dow Chemical Co., 186 NLRB 371, 384 (1970). However, that did not occur here. The statement he made was too broad. Thus, his statement violated Section 8(a)(1) as a threat to discharge employees who engage in a protected strike. Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1970); Bancroft Mfg. Co., 189 NLRB 619, 627 (1971). With respect to Weiss' amnesty promise, I regard Weiss' denial as not credible in view of Tracy's attitude and other violations committed by Weiss, infra. The promise violated Section 8(a)(1). As noted, salesman William Ellingham testified to cer- tain pre-10(b) matters. In addition, he testified that in September or October 1983, General Manager Kolinsky told him that if there was a strike Kolinsky could put his favorite people into other stores owned by Tracy. El- lingham says Kolinsky mentioned R. S. Taylor Classic Cars in Vallejo and also a Mercedes dealership in Monte- rey. Ellingham says such a transfer would have given him an opportunity to sell Mercedes automobiles , leading to higher earnings. According to Ellingham , Kolinsky told him he would make the transfers to protect some of the individuals in his organization . Furthermore, in re- sponse to a leading question , Ellingham testified that Ko- linsky said such a move would keep those individuals "out of the action," i.e., out of the strike. Kolinsky agreed that possibly in late October he had a conversation with Ellingham regarding R. S. Taylor Classic Cars. He said they were discussing the lack of progress in the negotiations that were then taking place. In fact, at that time, virtually no negotiations were oc- curring involving Cal Porsche-Audi. Kolinsky says El- lingham asked him if he could go to the Taylor dealer- ship if "something stupid happened," i.e., a strike . Kolin- sky says he replied that he had no jurisdiction over Taylor or over BMW of Monterey, another Tracy- owned dealership. Kolinsky says he told Ellingham it was up to the general managers at those locations to hire salesmen and he had no authority to do so. Kolinsky also says he never obtained employment for anyone during the strike and denies telling Ellingham he would protect 793 him by sending him to the Taylor dealership. He ob- served that Ellingham had worked for Taylor in the past. Ellingham also testified that sometime during the summer of 1983 Sales Managers Weiss and Miller were having conversations with various employees. Ellingham could not be more specific about the date . He said simi- lar conversations occurred more than once . Specifically, he remembers Weiss and Miller both recounted their memories of a strike that had taken place at Carlsen Volkswagen in Palo Alto several years before. El- lingham testified in conclusionary terms : "They kept stressing the futility . . . of a strike action; that nobody wins; that this in particular was a futile action; that people were out in the street indefinitely , and eventually it just kind of rotted away, broken; and that nothing was accomplished." They said, according to Ellingham, that time and time again this is what happened in strike ac- tions, so they could not believe the stupidity of "our pur- suing a better or the same contract, as this is a threat to our livelihood. They felt that this was a very stupid thing for us to be pursuing." When Miller was asked about the incident , he was di- rected to the "winter of 1983 " and denied that he had had any conversation with Ellingham regarding a strike at Carlsen Volkswagen . He further denied that he was present or anyone else was engaged in a conversation with Ellingham about any such strike and further denied telling Ellingham that the strike was futile or that it was stupid to pursue a contract with Tracy . Similarly, Weiss denied that in December 1983 he had any conversation with Ellingham regarding Carlsen Volkswagen . He does agree that he had similar conversations with Ellingham in 1981 or 1982. Specifically, he remembered telling El- lingham and others who were present that he felt sorry for the lone Carlsen picket and recalled saying that the strike was hopeless. He denied telling Ellingham that it was stupid to pursue a contract with Tracy. I find it curious that despite the specific reference to a summer conversation by Ellingham regarding Carlsen Volkswagen that both Miller and Weiss were directed to winter conversations . It may be true that Weiss spoke to Ellingham in previous years about the Carlsen strike, but I credit Ellingham that it was repeated again in the summer. Furthermore, I credit his testimony that Weiss and/or Miller asserted strikes were futile and that strikes had a tendency to rot away and become hopeless situa- tions. I further find that by so stating, Weiss was at- tempting to discourage employees from engaging in a strike. I reach this conclusion not only based on the de- meanor of the witnesses involved, but because I am aware that this dealer desperately wished to avoid a strike. See the other 8(a)(1) violations found herein. Not only did it wish to avoid a strike by reaching an agree- ment, it wished to avoid one by coercing employees to refrain from one. Accordingly, I conclude that the con- versations occurred as Ellingham testified and that such conversations violated Section 8(a)(1) of the Act by characterizing strikes as futile. It does not follow, however, that Ellingham's version of Kolinsky's supposed offer to transfer him to another 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dealership rings true. It may be that Tracy had the au- thority to make such transfers, but I do not believe Ko- linsky could have done it on his own. Furthermore, there is no showing that Respondent would derive any benefit from such a transfer. Merely keeping Ellingham and others "out of the action" would not solve Cal Porsche-Audi's strike. It would only remove an employ- ee from San Francisco and place him in another location. It would not have any impact on the length of the strike, and it might result in difficulties in transferring such an employee back. After all, Taylor sold Mercedes and as Ellingham noted his earnings might be greater there. If that were the case, why would he return to Cal Porsche- Audi? Similarly, the Monterey dealership is 120 miles from San Francisco and would require a move of house- holds. Frankly, the whole scenario just does not seem likely. More probable is Kolinsky's testimony that El- lingham, like most people, did not welcome a strike and wanted to determine whether there were ways to avoid its impact. Indeed, he had worked for the Taylor dealer- ship in the past and was well aware that Tracy owned it. I conclude that as Kolinsky said, Ellingham was shop- ping for a way to avoid the strike. This allegation should be dismissed. Ellingham also testified that during late November and December 1983, he had approximately three conversa- tions after work with Sales Manager Weiss in the pres- ence of Henrika Cartwright. Cartwright is Ellingham's girlfriend. She was a salesperson at another dealership and during this period often met Ellingham after work. Weiss was aware of her good reputation as a salesperson. During one of those conversations, Weiss told her he would very much like to have her come to work for him. Both Ellingham and Cartwright laughed. They had an agreement that they would not work at the same showroom. Ellingham mentioned their agreement to Weiss who replied that "could be handled," that El- lingham "probably wasn't going to be there much longer anyway." Ellingham felt humiliated and asked why. Ac- cording to Ellingham, Weiss replied that with a strike pending he felt sure that if a strike occurred Tracy would not rehire any individuals who were involved in it. Weiss testified he had first asked Cartwright to work for Cal Porsche-Audi in 1981 or 1982. He remembers the conversation in question , saying he jokingly told her sev- eral times that he would hire her if Ellingham left. He denies saying that with the strike pending he doubted El- lingham would be there much longer. He says he never told Ellingham that Tracy would not rehire employees who went on strike. He says Tracy never said such a thing. He further observed that at least one returning striker was later promoted to sales manager of the deal- ership's Lincoln-Mercury division and that other strikers were later promoted. Again, I credit Ellingham over Weiss. Clearly, Weiss told Cartwright that he had a job for her if she wanted it. He was well aware of the agreement between El- lingham and Cartwright that they would never work to- gether on the same sales floor. Accordingly, despite his denial, I conclude that his "joke" was nonetheless aimed at coercing Ellingham not to engage in the strike. Whether he really intended to hire Cartwright is beside the point; what he was really saying was that Ellingham would lose his job to another if he engaged in a strike. As previously noted, it is true that in strike situations, employers are permitted to hire strike replacements and are further permitted to tell employees that they have the right to do so. Dow Chemical, supra. However, there is a fine line here between a threat to discharge and a statement of legal rights. Weiss' statement lacks clarity and the ambiguity must be construed against him. Ac- cordingly, I conclude that the statement was an unlawful threat to discharge an employee for engaging in a strike. See Laidlaw and Bancroft, both supra. Ellingham further testified that in the month before the strike, i.e., December 1983, Sales Manager Weiss ap- peared at the "up-desk" frequently. The up-desk is the location where the salesman sits who is "up" to greet the next customer. Ellingham says that during this period Weiss constantly ridiculed Union Executive Officer Ortega and urged the salesmen to be "realistic" in their bargaining demands. In addition, Ellingham reports Weiss saying that the negotiations were hampering sales production. I should observe here that during November and December bargaining was actually occurring in meeting rooms at this dealership. Ortega and the union bargaining committee appeared there regularly as did Carter and the employer bargaining committee. They were visible and at times engaged in lengthy negotia- tions. Their presence and the length of time they stayed must have been a constant topic of conversation among the sales staff. In addition to these statements, Ellingham says Weiss urged the sales employees to decertify the Union. During this period, and perhaps somewhat earlier, a style form letter appeared at Cal Porsche-Audi. That form letter, in evidence as General Counsel's Exhibit 17, rather than being a decertification petition, is a proposed resignation letter. In addition, according to Ellingham, Weiss told the employees during that time that there were several people on the floor who were "not very loyal to the union" and would cross any picket line. Ellingham said that Weiss suggested the salesmen follow their lead and not engage in a futile act. Weiss' testimony is somewhat to the contrary. He tes- tified that it was normal for that dealership to sell 45 to 48 "units" a month. He says in November that figure fell to 30. As a result, he required Ellingham and, implicitly, others to be at the "up-desk" more often from Thanks- giving to Christmas . He also agrees that he attempted to encourage employees to sell cars and not to stand around during that time. He denies he ever said Ortega was taking a silly position in negotiations and also denies that he ever said strikes did employees a lot of harm. He also denies saying that some employees who were disloyal to the Union would work during a strike and, furthermore, denies telling Ellingham or anybody else to pay attention to those people. Finally, he denies suggesting that the employees decertify the Union. Without attempting to determine the relative credibil- ity of each claim, I observe that Ellingham's version TOYOTA OF SAN FRANCISCO probably does not make out a prima facie case with re- spect to at least some of this alleged restraint and coer- cion. He testified in conclusionary terms that Weiss "ridi- culed" Ortega. Without more, I am unable to conclude that the ridicule actually occurred or that it was even a disparagement of Ortega or the Union. Furthermore, as- suming that Weiss told Ellingham that Ortega ought to be more realistic and urged Ellinghani to seek that end, again I do not see that as having any 8(a)(1) liability. It simply does not amount to a threat , a restraint, or coer- cion of an employee in the exercise of his Section 7 rights and is too vague to qualify as direct dealing . Final- ly, the testimony that Weiss was around the up-desk more often or that he was demanding more production from employees during this month seems relatively in- nocuous. Weiss' testimony that production was down by one-third is undenied. Moreover, it was the pre-Christ- mas period and it seems likely that a good sales manager would want his floor covered during that time. However, consistent with his earlier conduct, I find that Weiss did advise Ellingham that some employees were disloyal to the Union and would cross a picket line and that Ellingham and others should follow their lead. Again, this is consistent with Tracy's somewhat desper- ate efforts to avoid a strike at all costs, including risking coercion to obtain that result. I have considered Re- spondent's argument that Ellingham 's testimony is the result of bias over his departure and some lost commis- sions as well as his failure to include one of the incidents in his pretrial affidavit. Nonetheless, on balance I con- clude that his version is more credible than that of Weiss. Given my earlier finding that Tracy was urging resig- nation from the Union as a way to avoid the strike, El- lingham's testimony that Weiss did the same thing seems entirely probable, Weiss' denial notwithstanding. This is particularly so in view of the appearance of the form res- ignation letters. Accordingly, I find Weiss made the re- marks as described by Ellingham and that they violated Section 8(a)(1). City Supply Co. and Deutsch Co., both supra. Connected to this is Weiss' urging employees to follow the lead of the "disloyal" employees who would dishon- or the strike. Although not couched in overt threat lan- guage, nonetheless restraint and coercion can be seen. Obviously if it restrains employees to provide them with unwanted advice or means to resign from the Union, urging them to break ranks amounts to almost the same thing. In fact, the restraint is probably stronger, for a threat of some sort of reprisal can be implied if the em- ployees fail to comply. Therefore, that remark, too, vio- lated Section 8(a)(1). The last witness called on behalf of the General Coun- sel with respect to 8(a)(1) violations at Cal Porsche-Audi is Donald Camp. Camp was hired in September 1983 to sell new Lincoln-Mercury cars as well as used cars. This Respondent had recently obtained the Lincoln-Mercury franchise. Camp is a long-tune auto salesman and has been a member of the Union for 31 years. The general sales manager to whom Camp reported was Ron Fields. Camp says he had four conversations with Fields in December 1983. In the first conversation, which oc- 795 curred in mid-December, Camp says Fields started to talk to him about the Union but stopped himself saying there was not much point in talking to Camp because Camp was an "old guard" union member. However, ac- cording to Camp, Fields went on to assert that Union Executive Officer Rudy Ortega was an "ass" and that the salesmen should resign from the Union. The second conversation occurred a little later at a sales meeting of Lincoln-Mercury employees. Camp says Field suggested that the salesmen should "settle up with the employers and bargain with them personally because it would put more money in his [Fields'] pocket if we were to settle with the employers on an individual basis . . . and he [Fields] would even make up for the changes by giving us bonuses and spiffs.3 The next conversation was sometime later but before the strike. It occurred at the up-desk. Several salesmen were present, including Richy and the two Manios, father and son. According to Camp, Fields told them the Union would never do the salesmen any good and reiter- ated that the salesmen should settle up with the employ- er and bargain individually. The last conversation Camp reported was at the end of the month, just before New Year's. It was apparently a repeat of the others suggesting that the employees resign from the Union and bargain with the employers on a one-to-one basis. Fields testified that shortly after he hired Camp he ob- served that Camp would not conform to sales depart- ment policies. His deficiencies included refusing to take customers in rotation, failing to go through the proper selling steps, such as demonstration drives, and appearing somewhat unprofessional on the floor: eating and reading newspapers at the up-desk. At the end of November, Fields says he asked Camp to resign but Camp refused. Accordingly, Fields asked Weiss and Kolinsky for per- mission to fire him. Kolinsky denied it on the grounds that there was a labor dispute in progress and as Camp was a longtime union member his discharge would simply exacerbate the situation. Later, after the strike was over, Fields did discharge Camp. This followed an altercation Camp had had on the sales floor and Fields' second request that he resign. Fields denies ever having a conversation with Camp in which he referred to him as an "old guard" union member. He agrees he once told Camp that Ortega acted like "an ass," but never said that Ortega was "an ass. He says he thought Ortega should have taken one of the Company's proposals. He remembers making the remark in front of several employees, probably including Camp. However, he denies telling Camp that he should resign from the Union and work during the strike. Further- more, he says that during the December sales meeting he never told employees they should sign separate contracts with Tracy. In addition, he denies saying that the ab- sence of a union contract would put more money in his pocket and that he could make up employee earnings re- ductions by giving them bonuses and spills. He also 3 A "spifr' is a hidden commission 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD denies ever telling anyone to resign from the Union or saying that the Union did no good. He does concede that he was aware that Camp had been a union member for 20 years. He says his reference to Ortega's not accepting the contract was in response to a question asked him by an employee that he felt he could not avoid. He had learned of the offer at the same time the rest of the employees did, about Christmastime, and believed Ortega should have accepted it. He could not recall which employee asked the question . He says the offer was not much of a change from what had been offered before and that although the commission struc- ture was changed slightly, depending on the deal, one could make more on some deals and less on others. He remembers demonstrating that fact to some employees by figuring some hypothetical sales. Unlike Ellingham's testimony, I believe Camp's was influenced by his discharge. Fields' testimony that on two occasions he had asked Camp to resign is undenied. The company response to the first request, a denial of permission because of its sensitivity, has the ring of truth. Furthermore, Camp's testimony about bonuses and spills stands alone . And, it does not seem to be the sort of offer that an employee could seriously view as a substi- tute for a collective-bargaining agreement. As a result, it seems unlikely that an employee would be expected to buy it. Yet, it is the sort of fabrication that could be made by a longtime salesman familiar with auto sales techniques, something that a cunning person would rec- ognize has facial appeal to the uninitiated . However, his audience was not unique and I do not accept his testimo- ny for such a proposal would have been ignored and Fields would know it. Instead , the testimony seems to be aimed for my consumption. Accordingly, Camp's testi- mony with respect to this supposed inducement to aban- don the certainty of a collective-bargaining contract in favor of pie-in-the-sky is rejected. Likewise, I am unimpressed with Camp's contention that Fields told him and other employees to engage in one-on-one separate bargaining with the Employer. It was in the same conversation as his fabrication with re- spect to the bonuses and spills and I believe that conver- sation to have been fabricated. Those allegations are dis- missed. On the other hand, Camp's testimony with respect to Fields' soliciting resignations from the Union is likely. Accordingly, I conclude that Fields did suggest to Camp and others that they resign from the Union. As that statement is consistent with the pattern letter being circu- lated, I find Camp's testimony in this regard to be true and it is accepted. Indeed, this is the third management official to have engaged in this conduct. I have previous- ly found it to be unlawful and do so again here. D. The 8(a)(3) Allegations 1. The Autocenter's discharge of Gene Dooley Gene Dooley had been employed by Martin Swig's Toyota of San Francisco dealership since 1972 when Swig purchased it from a previous owner. Dooley had been on board for 2 years at the time. Thus he had ap- proximately 13 years' experience. Furthermore, he had been for some time, not specifically shown in the record, Local 960's shop steward, albeit an inactive one. Dooley was discharged on Sunday, July 31, 1983. His immediate supervisor was Sales Manager Gil Wever. Dooley testified that on the Wednesday before his dis- charge Wever asked him if he was close to making his "draw." Dooley testified that he replied he was about $200 or $300 away. Wever looked at some of Dooley's pending deals and then said that the Company would "hold Monday [August 1] open." According to Dooley, on Friday Wever again checked and said Dooley was "okay." According to Dooley, Wever never said his job was in jeopardy for not making his draw . He worked on Saturday, but took Sunday off. On Sunday, Wever left a telephone message with Dooley's answering service. Dooley returned the call later that day. According to Dooley, Wever told him he was discharged, but was so nervous that he never com- pleted a sentence. Wever did ask Dooley to come in on Monday to discuss it, having said that he did not like to discharge people over the telephone. On the following day, Dooley went to the showroom. Dooley says Wever explained the timing saying that the discharge had to take place on Sunday, which was the end of the month, or the Company would be liable for an additional month's premium for health insurance. In fact, however, that was not true; yet Wever says he believed it to be the case. Wever testified that he and Dooley were longtime per- sonal friends as well as having the at-work-business rela- tionship. He testified, and Dooley agrees, that in Decem- ber 1982 he and General Manager Richard spoke to Dooley in Richard's second floor office to try to im- prove his falling sales record. Wever says Richard "put Dooley on notice" that if his sales did not improve the Company would let him go. In fact, Wever recalls, Dooley asked at the outset of the meeting if he was to be fired, but Wever replied that if they were going to fire him they would have done it "downstairs." Between the December warning and late-July, Wever says he continued to discuss Dooley's poor performance with him. He says, however, that Richard was not in- volved in Dooley's July termination decision. Wever says that when the Company moved to the Au- tocenter location in June 1983 he expected sales to double. Indeed, the factory was scheduled to give the dealership extra cars to sell. Wever says well before the move he was under pres- sure from higher management to demonstrate that they had selected the "right person" to be in charge at the new location, meaning himself. Accordingly, he decided to investigate the best way to retail these additional auto- mobiles. He says he learned from two other dealerships which had recently expanded, that they had made the mistake of failing to hire enough salesmen and learned that they had become obligated "to blow the cars out the door" through heavy advertising. Determined not to make that mistake, Wever began looking to improve his sales staff in early 1983. One of the ways to improve the staff was, of course, to hire new employees; another was to get rid of poor producers. TOYOTA OF SAN FRANCISCO It is undisputed that Dooley was the worst producer at that time. He had failed to make his March draw and would not have made his April draw had Wever not fed him a fleet deal. Finally, he never made his July draw even though one of the three pending deals did close That delivery did not occur until August, but the dealer- ship credited him with half the commission, splitting it with the salesman who made the actual delivery. Even a half commission was not enough to help. The collective-bargaining contract requires the Em- ployer to pay a guaranteed minimum even when the salesperson fails to make his draw. An employee who is not making his draw is therefore a burden on the system. The General Counsel observes that Dooley, the stew- ard, was involved in a number of discussions with Owner Martin Swig during the preceding months in which Swig tried to persuade Dooley of the merits of a substitute pension program for that offered under the union contract. Dooley had not been persuaded. The General Counsel argues from this that Swig must have become upset with Dooley and determined to discharge him either because he would not agree He observes that the discharge occurred quickly and without immediate warning, deprecating the warning issued 6 months previ- ously, and further points to Wever's "misunderstanding" of the health and welfare liability for the following month. He argues that Dooley was treated disparately from others and that failing to make the draw was not a ground for discharge. He also asserts it may be implied that the reason Dooley did not make his draw in July was because Wever refused to approve sales for Dooley. With respect to the latter contention, there simply is no record evidence that any such thing happened. Wever may have had the power to disapprove sales, thereby af- fecting an individual's commission, but Dooley never claimed Wever did such a thing. With respect to the disparate treatment question at least one individual with low production, Penna, was not discharged. Wever says that Penna was simply experi- encing a run of bad luck, not lack of effort. On the other hand, he says, Dooley simply sat at his desk and did not seem to be interested. However, Wever did fire one Trotter on the same day as Dooley for not selling cars and earlier had fired Tate for not selling cars. He had also asked Nyland to leave because of his "kinky" deals. Frankly, the sales records on the disparate treatment question are somewhat ambiguous and given Wever's ob- servation that there was a distinct difference in effort being made by Penna versus that made by Dooley, I do not believe that disparate treatment argument withstands scrutiny. More to the point is the timing of this discharge. It did occur at the end of the month and it does not seem un- likely that that would be a preferable time to let someone go; yet it also occurred at a time when collective bar- gaining was ongoing. In fact, Swig's dealerships were the principal focus of the Union at that time. The principal concern of the Union was to try to obtain a just-cause clause in the new contract. There is no evidence that the pension plan was a real stumbling block at that stage of the negotiations . I think it is fair to say that later on that occurred, but in late July was not much of a concern. As 797 it was not significant, it does not seem likely that Swig would target Dooley for his predictable stand favoring continuation of the union pension plan. Moreover, Dooley was a relatively inactive steward. His lack of activity was probably considered a plus by Swig. There would be no foreseen benefit to the collec- tive-bargaining relationship to discharge him. According- ly, I conclude that Dooley's status as a union steward was a neutral factor in this scenario. Swig had no reason to take a reprisal against Dooley for any union activities he may have engaged in for he had engaged in none and was unlikely to do so in the future. Thus, the only reason remaining for the discharge is that advanced by Wever. Wever knew Kolinsky had warned Dooley for lack of production and knew Dooley had failed to make his draw in 2 of the preceding 7 months and would not have made his draw in April had not Wever fed him the fleet deal. Furthermore, he was aware that a large number of automobiles was coming as a result of the location change and his interest in shaping an active staff appears genuine. Dooley did not fit that profile. Finally, Doo- ley's description of the days preceding the discharge as- serting that Wever had said Monday would be held open was unimpressive. Accordingly, I conclude that the General Counsel has failed to prove that the Autocenter discharged Dooley because of his activities as a steward, his status as a stew- ard, or because he refused to be budged by Swig with respect to changing the pension plan. 2. Additional 8(a)(3) allegations a. The retroactive wage refunds-the arbitrators' decisions Aside from the discharge of Dooley, all four Respond- ents are accused of violating Section 8(a)(3) with respect to certain remuneration reductions. The Autocenter, Cal Porsche-Audi, and European Motors are all accused of discriminatorily implementing the Autohaus Brugger wage rate. In the case of British, it is also accused of dis- criminatorily changing the health and welfare plan. In addition, the Autocenter, Cal Porsche-Audi, and Europe- an are accused of violating Section 8(a)(3) by billing salespersons for commissions that had been paid in excess of the new or Autohaus Brugger rate. Finally, those three are also accused of discriminatorily denying sales- persons commissions on sales that occurred prior to the strike, but where the vehicles were delivered during the strike. The first issue, the wage reduction in accordance with the Autohaus Brugger plan, has been heard by two arbi- trators, Sam Kagel and Geraldine Randall. Kagel's deci- sion was pursuant to Skonberg' s most-favored-nation grievance on behalf of Cal Porsche-Audi, European, and British. Although filed second, it was decided first. The case before Randall, involving the Autocenter, consoli- dated the Union's grievance over that firm's September implementation of an alleged last offer with Carter's most-favored-nation grievance. Kagel decided his case on October 22, 1984; Randall decided hers on April 1, 1985. With respect to the issues raised by the most-fa- 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vored-nation clause, both arbitrators reached the same conclusions, Randall following Kagel's lead. Posthearing motions were made by Respondents asking that the Board defer to these decisions. On reviewing the Gener- al Counsel's responses, both arbitration decisions are re- ceived in evidence. The Kagel and Randall decisions are attached as Appendices A and B, respectively. As can be seen, both arbitrators held that by their own terms the applicable collective-bargaining contracts had not expired prior to the January 3, 1984 strike. Accord- ingly, they held that the most-favored-nation clause, sec- tion 21 , continued to have life until at least that date. Both also held that the employers were not permitted to apply the Autohaus Brugger contract on a retroactive basis. With respect to all these employers, the arbitrators have made clear findings that they had the contractual right to implement the more favorable terms of the Au- tohaus Brugger contract . Thus, because Respondents had that right, the Board would be hard pressed to conclude that the exercise of the right was discriminatory. Yet, the General Counsel argues that even if the arbitrators' deci- sions are binding with respect to the unilateral changes, the decision to invoke the Autohaus Brugger contract, as well as to apply it retroactively, was motivated by the Union's threat to strike or its actual strike. Thus, he argues that even if privileged under Section 8(a)(5), the conduct nonetheless violated Section 8 (a)(3). I do not agree. First, there is simply no direct evi- dence that the decisions were discriminatorily motivated. The Autohaus Brugger contract was not discovered until December 20 and was not implemented until after a grievance had been filed. Furthermore, the strike, al- though threatened, had not yet occurred. Finally, it seems most logical that the Employers would take the immediate economic advantage to which they were con- tractually entitled as soon as they possibly could. That it may have been connected to a pending strike or even the strike itself is only of neutral value in terms of timing, for it is equally proximate to the discovery of the contrac- tual right to invoke those terms. Thus, on this record I find that the General Counsel has failed to prove a dis- criminatory motive. It seems most likely that these Re- spondents would have done what they did whether there was a strike. Second, there is no reason not to defer to the arbitrators' judgments . As the Board said in Olin Corp., 268 NLRB 573 (1983): We adopt the following standard for deferral to ar- bitration awards. We would find that an arbitrator has adequately considered the unfair labor practice if (1) the contractual issue is factually parallel to the unfair labor practice issue, and (2) the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice. [Footnote omit- ted.) In this respect, differences, if any, between the contractual and statutory standards of review should be weighed by the Board as part of its deter- mination under the Spielberg [Mfg. Co., 112 NLRB 1080 (1955)] standards of whether an arbitration is "clearly repugnant" to the Act. And, with regard to the inquiry into the "clearly repugnant" standards, we would not require an arbitrator's award to be totally consistent with Board precedent. Unless the award is "palpably wrong" i.e., unless the arbitra- tor's decision is not susceptible to an interpretation consistent with the Act, we will defer. In this respect, the contractual issues were factually par- allel to at least the 8(a)(5) unfair labor practice issues and the arbitrators were presented generally with the facts that were relevant to the unfair labor practice case. Moreover, I cannot say that their decisions are "palpably wrong." Assuming, as the General Counsel argues, that the 8(a)(3) theory was not before them (and therefore de- ferral is inappropriate), the General Counsel's own proof in support of the 8(a)(3) theory failed before me. Thus, whether the arbitrators considered a discrimination theory is immaterial. Either way I must defer to their findings that Respondents had the contractual right to invoke the Autohaus Brugger contract. And, as they found that Respondents did not have the right to invoke that contract retroactively, I shall defer to the arbitra- tor's decision there as well. They have entered a full and complete remedy for the Respondents' misconduct here. An 8(a)(3) finding would add nothing to what the Union can now enforce. b. The denied commissions The same cannot be said, however, for the 8(a)(3) alle- gation with respect to the denial of commissions in situa- tions in which the salesperson had sold a car and was simply awaiting its delivery when the strike commenced. In those situations, the facts are clear. Three of the Em- ployers, Cal Porsche-Audi, the Autocenter, and Europe- an Motors, determined that they would not pay striking employees for cars ordered prior to the strike but which were delivered by management or strike replacements after the strike began. The record reflects several inci- dents of this nature and there is a factual stipulation as well. Certainly Lenzi of the Autocenter announced th-- policy to Ng and others on December 29, 1983. With re- spect to the existing practice, the testimony of the sales employees generally was that prior to the strike if one salesman obtained an order, but was unable to deliver the car to the customer because of absence or some other reason, he was usually given a split commission. The practice was not uniform. In some cases management simply honored whatever agreement had been reached between the salespersons. Others had a policy to split the commissions 50-50. Whatever those policies were, they were not followed when the strike began. Respondents' defense is contractual. They point to sec- tion 18(B)(1) of the contract which reads as follows: EARNED COMMISSIONS DEFINED: For the purpose of this contract and in order to determine the date on which a commission shall have been earned, a commission shall be considered earned upon the delivery of the motor vehicle to the pur- chaser by the dealer. The Employers argue that this language should be in- terpreted to mean that commissions are not payable to TOYOTA OF SAN FRANCISCO anyone except the individual who actually delivered the automobile. I note, however, that the provision immedi- ately following the quoted language, dealing with a ter- minated employee's entitlement, requires a contrary in- terpretation. That sentence in essence states that if an employee is terminated before the delivery of an automo- bile his commission shall not be forfeited. Based on the prestrike practice of each of the employ- ers, as well as a fair interpretation of these two clauses, I conclude that the delivery of the automobile to the cus- tomer merely signals when the commission is to be cred- ited against the draw; it does not signal to whom that commission should be paid; neither does it determine how the commission should be split. Clearly at all times at least some remuneration was directed to the employee who arranged the sales contract. At that point , the com- mission was accrued (subject to a cancellation of the deal by the customer) but not "earned" until the delivery of the automobile. Payment was not made on that amount until payday. In situations in which one salesperson closed the con- tract but another actually delivered the car, both sales- persons were entitled to be paid portions of the commis- sion, having split the duties leading to the sale's finaliza- tion. Accordingly, I conclude that these Respondents violated Section 8(a)(3) and (1) of the Act when they denied the payment of any commission to strikers who had obtained signed binding sales contracts in situations in which the automobile was delivered to the customer by a nonstriker. I recognize that the manner in which the commission is to be divided varies from dealer to dealer and perhaps even within dealerships. Because of these in- consistent practices I am compelled , for remedy pur- poses, to recommend an equitable result approximating as best I can what would have happened absent the dis- crimination Applying such a doctrine, I conclude, for compliance purposes , that each striker entitled to remu- neration under this finding, is entitled to 50 percent of the commission . If nothing else this closely approximates the actual practice. 3. British's health plan The last 8(a)(3) allegation is British Motors' implemen- tation of a health plan for its sales staff in February or March 1984, after the strike ended. At the hearing, the General Counsel added an 8(a)(1) allegation connected to that plan as the brochure describing it contains a sen- tence that appears to be objectionable on its face. With respect to the health plan itself, the previous car- rier had canceled coverage effective November 1, 1983, and all the dealers had to scramble on short notice to provide health coverage. Emergency bargaining in late October resulted in a stop-gap measure that all the deal- ers except the Autocenter would obtain coverage through November under the Motor Car Dealers Asso- ciation of San Francisco set forth in an agreement with another Teamsters Local. According to a letter from the Employers' chief negotiator Carter to Teamsters official Ortega, dated November 1, after December 1 all parties would remain free to change the medical program. Thus, it appears reasonable to conclude that British Motors' poststrike switch to the Provident Life and Ac- 799 cident Plan, which was already in effect for its unrepre- sented employees, was motivated by business consider- ations, not antiunion considerations. That plan had been in effect for those employees since at least June 1, 1981, the date of the brochure. However, the General Counsel is no doubt correct in observing that the eligibility language contained in that plan is offensive. According to its terms, the plan was available to any employee of the group who was sched- uled to work at least 30 hours per week and was "not in an occupational classification which makes you eligible for representation by a collective bargaining unit ." Obvi- ously, a plain reading of that sentence requires one to conclude that union-represented employees are ineligible for the plan and that such a restriction operates as a pen- alty for being represented by a union. On its face, there- fore, the language violates Section 8 (a)(1). See Niagara Wires, 240 NLRB 1326, 1327 (1979), and cases there col- lected. Also Solo Cup Co., 176 NLRB 823 (1969), Jeffer- son Wire Corp., 159 NLRB 1384 (1966). Nor is this state- ment barred by Section 10(b), having been originally made in 1981 . It continued to speak during the 10(b) period. Even so, that language does not bear any relationship to Respondent British's decision to implement the plan. Certainly its actual implementation in favor of the sales- persons demonstrates that the plan actually was available to union-represented employees despite the language to the contrary . Moreover, the General Counsel has failed to show that the language used therein was well pub- lished to the salesmen; thus, no inference may be drawn that its purpose was to coerce the salespersons to aban- don union representation . Instead the whole matter ap- pears simply to have been Respondent British's ad hoc attempt to make certain that salespersons continued to have group health coverage in the aftermath of the col- lapse of the previous plans . Thus, I do not believe that the General Counsel has made out a violation of Section 8(a)(3) here. Nonetheless, I shall issue an order with re- spect to the 8(a)(1) violation arising from the plan's eligi- bility language. E. The Alleged Breach of the Good-Faith Bargaining Obligation Each of the complaints is similar insofar as it contends that Respondents engaged in certain bad-faith bargaining, but each complaint contains variants as well as common- alties. In general they may be broken down into four separate categories : The first category is bargaining tac- tics, of which there are several variations. Except for one allegation of direct dealing , all occurred at the bar- gaining table . The remainder includes allegations of out- right refusals to proceed with collective bargaining, re- gressive proposals, inconsistent proposals, and the like. The second category is unilateral changes falling into two subheadings. The first subheading would be the prestrike implementations of new working conditions and involve the question of whether such changes were priv- ileged either by impasse or by the most -favored-nation clause. If the latter, there is the subsidiary question of whether I should defer to the arbitrators' decisions. The 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD second subheading is poststrike unilateral changes, princi- pally dealing with British Motors' implementation of the previously discussed health insurance plan, but also in- volving alleged changed working conditions imposed on the strikers when they returned. The third category is the question of whether the Union could accept on February 4, 1984, the January 3 offer. The fourth and final category is whether the Auto- center in February 1984 was privileged to withdraw rec- ognition of the Union as the exclusive collective-bargain- ing representative of its auto salespersons. 1. Bargaining tactics a. The complaints allege that during the course of col- lective bargaining the employers' chief negotiator, Attor- ney James Carter, engaged in an outright refusal to bar- gain over the question of "just cause." All parties agree that the Union attempted to obtain a "just cause for dis- charge clause" in the new agreement right from the be- ginning. Furthermore, its focus on this question was aimed principally at the Swig dealerships at the Auto- center. Later, an effort was made to persuade Cal Porsche-Audi of the merits of such clause. Carter testi- fied the Union has long sought this clause and in fact had failed to obtain it in the 1980 negotiations. Both Carter and Ortega agree that few if any topics other than just cause were discussed from May through October. The principal exception to that appears to be the health and welfare cancellation by the insurance carrier and the discussion and events surrounding it. There was a 2-day discussion, September 26 and 27, over just cause with Carter and, according to Ortega, Carter said that Swig could probably live with such a clause, but the other dealers could not. Even so, Carter drafted some watered-down language that would accom- plish the same purpose, saying he would try to persuade them. On October 20, the parties met again. At that time Ortega contends that Swig, who was present, told him that if the just-cause issue was not taken off the table ne- gotiations would not proceed. It also appears that Carter told Ortega the watered-down language, which he had previously put together was not acceptable, observing, "Everything is timing." Moreover, Ortega contended that Carter told him a contract was imminent if the Union would only drop its just-cause demand. Carter tes- tified, however, that the October 20 meeting was not a negotiation meeting, but was intended to bring Chuck Mack, the Joint Council of Teamsters president, up to speed as this was the first time Mack had joined the union bargaining team and had taken its lead. Carter denies saying that if the Union would dump the just-cause issue there were no other obstacles to a con- tract. He admits saying that the parties could not make progress unless that topic was dropped . He also testified he told Ortega that the parties needed to discuss areas where agreement could be reached. According to Carter, they had hardly discussed such topics as the Western Conference of Teamsters Pension Plan, the health and welfare question (which had just become acute) and re- duction of the commission rate to what he and the deal- ers termed "parity."4 Swig's testimony corroborates Carter. He states that Carter told the union team that the issue of just cause was a big obstacle but if the parties could get it out of the way, they could proceed to other outstanding issues. He testified Carter did not say just cause was the last ob- stacle to an agreement. With respect to this issue, I conclude that Carter and Swig have presented the more credible view. Although it may be true from a social standpoint that a just-cause clause is desirable, it is equally true that this group of dealers had fiercely opposed such a clause for years. Their opposition continues. Nonetheless, the Union per- sisted from May until October 1983 with a single-mind- edness bordering on the unbelievable. It did not seriously concern itself with any other topic. I find that as the Union became more and more frustrated over the Em- ployers' unyielding stance, it began to lose sight of the fact that there were many other terms yet to be dealt with. Accordingly, Ortega did not even attempt to deal with them. I think it is apparent that this single-minded- ness, far more than the Employers' response to that single issue, was the bargaining impediment here. Carter's observation that it had become an obstacle to an agreement was accurate; Ortega's contention that Swig asserted the Employers would bargain no further until that was off the table, even if true, was a recognition of that reality. In any event I am not certain that I could fully credit Ortega's recollection. I think it is fair to conclude that the truth surrounding this colloquy is that both parties had become frustrated by the lack of progress and any statements made by Swig or Carter to the effect that bar- gaining could progress if just cause were out of the way should not be characterized as an outright refusal to bar- gain. It was, instead, recognition that that topic was a dead-end and the parties should focus on other issues. Therefore, I conclude that the General Counsel has failed to prove a violation in this respect. b. The other incident in this category, outright refusal to bargain or conditioning bargaining on some event, is Attorney Skonberg's statement on January 30, 1984, re- garding arbitration. The General Counsel contends that Skonberg refused to resume bargaining unless the Union would agree to arbitrate the most-favored-nation griev- ance that he had just filed. Union Attorney Frank Silver testified that Skonberg had introduced himself that day and stated which Em- ployers he was representing. He had, only that morning, replaced Carter as the chief negotiator. Even though Skonberg had consulted with his new clients that morn- ing and perhaps a few days earlier, the decision actually to replace Carter was not made until that day or the day At this time the dealers were not aware of the terms of the Autohaus Brugger contract in Redwood City They were, however, well aware of the nonunion competition in the San Francisco area, particularly a group of dealers they termed "Serramonte " This was not only a reference to a string of dealerships located in Daly City, a nearby suburb, but encom- passed other Bay Area nonunion dealers as well The commission struc- ture at those dealerships was significantly less than that of the DASA group TOYOTA OF SAN FRANCISCO before. Accordingly, Skonberg could not have been fully prepared to bargain over substantive issues that after- noon. He was, however, fully apprised of the Autohaus Brugger situation; indeed, he had been Autohaus Brug- ger's negotiator. He was quite familiar with that agree- ment. He knew it contained a no-strike clause and he also knew Respondents' contracts contained most-fa- vored-nation clauses. Thus, his grievance duplicated, for Cal Porsche-Audi, European, and British, that which Carter had filed in December for the Autocenter. How- ever, he added a claim that the most-favored-nation clause of their contracts had incorporated the Autohaus Brugger no-strike clause. Thus, he contended the San Francisco strike was a breach of that clause. After Skonberg made this argument, Silver responded it was "frivolous." Nonetheless, there is agreement that Skonberg asked that his grievance receive expedited treatment and be placed immediately before an arbitra- tor. Silver contends Skonberg also said there was no point in negotiating pending an arbitrator's decision. Skonberg denies that, saying he simply asserted that little could be accomplished until the arbitrator had ruled. The Union then called a caucus. Shortly thereafter, Mack offered to engage in interest arbitration over the entire contract. Skonberg declined the offer; Mack then asked if Skonberg's clients would sign the agreement, which Boas Motors had signed the week before. Skon- berg declined that as well. The grievances were, as noted, submitted to both arbi- trators. Among other things they decided that although the most-favored-nation clauses set forth in the San Fran- cisco agreements did incorporate the more favorable terms set forth in the Autohaus Brugger contract, they did not incorporate its no-strike clause. Thus, I find Skonberg's contention that the no-strike clause was bind- ing on the Union in San Francisco to have been without merit. Even so, I do not find his position to have been legally "frivolous" as Silver opined. In any event, it seems to me that when Silver was listening to Skonberg's explanation, he focused on his perception of the frivolity of the claim. From Silver's perspective the entire matter was without merit. Manifestly, however, that was not the case. The arbitrators, in large part, ruled in the em- ployers' favor. But because Silver was so concerned with the perceived lack of merit in Respondents' position, I do not believe he clearly understood what Skonberg was saying. Skonberg knows best what he said and, even though one might argue his testimony was different from what he actually said, I can see no reason to conclude that the differences are of great significance. I do think it clear that all parties would agree that the most-favored-nation issue, if meritorious, would change the entire direction of the bargaining. Thus, Skonberg's version, that bargaining would not be very productive until those issues were resolved, was quite correct. How- ever, under either version it appears to me that Skonberg never engaged in an outright refusal to bargain pending the outcome of the arbitration. Furthermore, given the actual merit in his position, it is fair to say that the arbi- tration itself was good-faith negotiation. Accordingly, I conclude that the General Counsel's complaint with re- spect to this issue is unproven and should be dismissed. 801 c. The next issue which I address is that which the General Counsel characterizes as "ultimatum bargain- ing." This typically took two forms. One was Carter's drafting of "final" offers capped by "final/final offers." The other was the issuing of proposals not characterized as final, but setting a short deadline for their acceptance. In each case, Carter stated that if the offer or the final offer, whichever it was, was not accepted then Respond- ent would impose the lesser terms set forth in the "final/final" offer or, in the second form, less beneficial terms. This tactic the General Counsel terms as regres- sive. I agree that both the term "ultimatum" and "regres- sive" are appropriate. Whatever description is best, how- ever, it is clear that the tactic does not lend itself to rea- soned thinking. It leaves little room for debate and no room for counteroffers. Respondents explain, saying the tactic was simply an effort on their part to obtain cost parity with their competitors. From a business point of view, I would not quarrel with their desire to obtain that end. However, the means used to seek that end does not comply with the mandate of Section 8(d). By way of example, I note the following efforts by Carter to artificially force negotiations along. On August 29, 1983, he made his first so-called final offer-on behalf of the Autocenter. On September 22 he made a "final offer" for British. Then on November 17 he made a "final offer" on behalf of Cal Porsche-Audi. At that time he set a deadline of November 19 for acceptance, but a final/final offer was to be implemented if the employees struck. The final/final contained terms less favorable than those in the final offer. Things went fairly well during the ensuing few days; yet on November 22 or 23 he issued a "revised final offer" for Cal Porsche-Audi. Ultimately the Union rejected the final proposal as re- vised, but did not strike. On December 15-16, at or shortly before a meeting, Carter issued a deadline letter on behalf of Cal Porsche- Audi and European telling the Union to accept their final offers by December 20 or they would be imple- mented. He then issued revised final offers for British and Cal Porsche-Audi, followed by "final/final offers" for Cal Porsche-Audi, British, and European if a strike occurred. In addition he withdrew the Autocenter's August 29 "final" offer. All the final/final offers signifi- cantly reduced earlier offers. Without detailing each proposal contained in the vari- ous "finals," "revised finals," and "final/finals," it is ob- vious that Carter was engaging in extracurricular activi- ty. Certainly, there was nothing final about any of them. The only matter set in concrete was the unmistakable threat to implement the final/finals if the Union struck. Section 8(d) of the Act requires that parties having a 9(a) relationship, as here, bargain in good faith. That duty demands an open and sincere effort to reach an agreement. Necessarily, that requires each party the op- portunity to digest, understand, and evaluate the other's proposals as they are made, without saddling the other party with artificial deadlines or threats. Yet, Carter's tactics here did exactly that. He did not give the Union the benefit of that enlightened approach. By making this observation , I do not mean to suggest 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the Union was approaching these negotiations with a pure heart. Yet, aside from what the Union was trying to accomplish, it is clear that the employers, led by Tracy, wanted competitive relief as quickly as they could get it, hopefully short of a strike. Tracy was even willing to risk that, considering the final/finals he intend- ed to impose. Thus Carter's tactic here was to approach this bargain- ing with a hammer-followed by a tong: make offers under threat of their withdrawal in favor of something less. At the very best, from Tracy's standpoint, this would result in the Union accepting a hastily, ill-consid- ered contract. At worst, the Union would become befud- dled and unable to meet the issues, giving the Employers the opportunity to declare an impasse and implement a not-fully-understood, or even discussed, last offer. And, if the tactic triggered a strike, terms and conditions never truly discussed at the table would be implement- ed-the "final/final"offers. None of this amounts to an open and sincere effort to reach an agreement as required by Section 8(d). Accord- ingly, I conclude that the tactic used by Carter breached Sections 8(a)(5) and (1) and 8(d). 2. The unilateral changes-the effect of the arbitral decisions The first prestrike unilateral change was the Auto- center's implementation on September 1, 1983, of what it characterized as its last offer. The General Counsel has not alleged that act to have violated the Section 8(a)(5). This appears to be explained in Respondent's motion of April 11, 1985, to reopen the record to receive Arbitra- tor Geraldine Randall's decision of April 1, 1985. In that motion Respondent asserts that the Regional Director had deferred that issue to the arbitration process. None- theless, in reading the General Counsel's brief one might conclude that he seeks a remedy for that implementation on the ground that no impasse had been reached privi- leging the conduct.5 Yet, even a cursory review of Arbitrator Randall's de- cision is sufficient to warrant Board deferral, whether on Collyer5 or Spielberg-Olin7 grounds. Assuming the issue to have been fully litigated before me, an assumption I could not truly make, justifying my deciding that issue despite its omission from the complaint, Randall's deci- sion fully deals with it. She specifically found, as had Arbitrator Kagel before her, that the 1980-1983 contract was still in effect in De- cember despite the passage of its July expiration date, based on the language in its expiration clause. That, of course, meant that the most-favored-nation clause was still in effect-both in September and December 1983. Randall reasoned, following Kagel, that all the employ- ers were, therefore, privileged to implement those Auto- 5 My concern here may simply be one of excessive caution, but see p 21 of the General Counsel's brief where the absence of impasse is force- fully argued in an overall conduct context Despite his lack of specific argument in this direction, one could easily be led to conclude that he is seeking such a remedy 6 Collyer Insulated Wire, 192 NLRB 837 (1971) 7 Spielberg Mfg Co, 112 NLRB 1080 (1955), Olin Corp , 268 NLRB 573 (1983) haus Brugger terms which were more favorable to the employers than those then in effect. Randall went one, entirely logical, step further. She held that because the Autocenter had the right to adopt the appropriate Auto- haus Brugger terms, it was also privileged to adopt terms more favorable than its existing contract so long as those terms did not sink below those of Autohaus Brugger. (See App. B, Issue One, pp. 16-19.) While I might not have reached the same conclusion, no doubt on policy grounds, I believe her logic, ground- ed in contract law, to be unassailable. Certainly her logic is well within the Olin test. " ie facts are parallel and generally relevant to resolvi, g the unfair labor practice. Neither is her logic "clearly repugnant" to the Act or "palpably wrong." Assuming the General Counsel is in fact urging me to make findings here, I conclude that the Board should defer to her decision. Likewise, I conclude, as I did in the 8(a)(3) portion of this decision, section D,2, that the Board must also defer to the Kagel-Randall decisions insofar as they found that the most-favored-nation clauses permitted Respondents to invoke the more favorable terms of the Autohaus Brugger agreement. Again the Spielberg-Olin standards have clearly been met. There is no good reason not to defer to their findings. The General Counsel makes one last argument that the Board not defer. He asserts that careful analysis demon- strates that not all the terms actually implemented are consistent with Autohaus Brugger; indeed, he asserts sev- eral items provide Respondent's employees with benefits lower than those set forth in Autohaus Brugger. Al- though I believe there is some truth to what he says, I would, nonetheless, defer. Both arbitrators have specifi- cally retained jurisdiction to determine the remedy in each case in the event the parties are unable to agree on the amounts of pay or fringe benefits lost by employees here. The entire matter is, therefore, reduced to one of contract breach, fully determinable by the arbitrator. De- ferral is entirely appropriate. After the strike began, Cal Porsche-Audi issued on January 5, 1984, certain changes in the work rules. When the strike ended in February, returning strikers were ad- vised that these rules now applied to them. It is undis- puted that there was no notice to or bargaining with the Union over them. They included both conduct restric- tions under threat of discharge as well as certain bo- nuses. The violations found here are those changes deal- ing with employee conduct, not pay-connected matters, for Arbitrator Randall's logic applies here even though her decision was not directly applicable to Cal Porsche- Audi.8 As long as pay was not reduced lower than Au- tohaus Brugger, Respondent was contractually free to implement it. That became the 8(d) standard these Re- spondents were obligated to maintain when the strike began. In offering bonuses here, Cal Porsche-Audi did not breach the standard. The Autohaus Brugger contract did not, however, permit Cal Porsche-Audi to implement work rules not previously in existence there. Thus their 8 The contract language was the same as were the issues Her defini- tive interpretation of the contract is entitled to deference under both the doctrine of collateral estoppel as well as one of simple consistency TOYOTA OF SAN FRANCISCO implementation without notice to the Union and giving it an opportunity to bargain over them breached Section 8(a)(5) and (1). Having been triggered by a protected strike, their imposition can also be seen as inherently de- structive of the Section 7 right to strike and thus an inde- pendent violation of Section 8(a)(1), if not Section 8(a)(3). NLRB v. Great Dane Trailers, 366 U.S. 26 (1967). 3. The Union's purported acceptance of the Employers' January 3, 1984 offer According to the employers' chief negotiator, Jim Carter, the meeting that was held on January 3, 1984, was called at the request of the Machinists Local, which represented the mechanics. They were not directly in- volved in this negotiation, but would be affected in the event of a strike. Because of the Union's interest, the par- ties agreed to conduct one last effort to reach an agree- ment before the strike began. Prior to the meeting, Carter and his clients met to dis- cuss their approach to the situation. He remembers there was an initial discussion among the Employers present about the accuracy of information supposedly being given to union members by the Union. After that, he says, he tried to determine what concessions the Em- ployers could make to avert the strike. Carter says it was his specific determination that any strike not be caused by the Employers' refusal to make concessions. After some debate, a document was drafted the (G.C. Exh. 32), which became the Employers' offer. It covered three of Respondents here, Cal Porsche-Audi, British, and Euro- pean, as well as Royal, Boas, and Lucas. The Autocenter was represented at that time by its general manager, Richard, but because Swig was not present (he was in Europe), the offer did not include the Autocenter.9 In any event, the General Counsel's Exhibit 32 was a com- promise which particularly rankled Committee Head Jim Tracy of Cal Porsche-Audi. Carter made the initial representation with respect to that proposal. He told Union Negotiators Mack and Ortega he was not trying to "bust the Union," that the wage offer was still high. Indeed, this proposal contained wages higher than that set forth in the Autohaus Brug- ger contract. Carter explained that the offer contained concessions by the employers but also told Mack that he did not want any counterproposals. Tracy testified that at that point he joined in, saying he "personally" did not like it but "in the spirit of trying to get a contract [and] to cooperate with all the dealers trying to get something, that I had gone along with it, but this was not another attempt to just sit down and start banging heads again. That what we were offering was final and if they don't take it and they walk, then we have to go for parity. Otherwise, here's something that gives the membership a heck of a contract and more than we thought we should give and hopefully they were going to accept it and we would not have a strike e Richard testified that he was present during both the premeeting caucus as well as the meeting itself He said that had the parties reached an agreement that day, he knew how to locate Swig in Europe and would have been in immediate telephone communication with him He inferred that Swig undoubtedly would have made the same offer if he could be assured that the Union would have accepted it 803 but if they did, I reiterated again that you know, there was going to be war." Tracy's testimony in this respect is corroborated by Carter, Tracy's subordinate Kolinsky, Jules Barsotti of European, Robert MacLean of British, and Richard. These individuals, of course, are involved in this litigation and may be considered to have a bias. Also present, however, were representatives of dealers not involved in this litigation. They, too, corroborate Tracy. These are Michael Hansen and Wayne Babcock of Royal Motors, Don Stewart of Boas, and Phil Dirick- son of Lucas Cadillac. It is true that the words utilized by each of these witnesses tend to vary but I do not be- lieve that this is the result of fabrication, simply one of varied recollections. In each case the conclusion to be drawn from the words used is the same: Tracy told the Union that this was a last effort to try to avoid the strike, that it was better than the Autohaus Brugger con- tract, but if a strike occurred, economic warfare would begin; that the cooperative effort of the Employers that had produced this proposal would be destroyed; and they would revert to an effort to seek "parity," i.e., meaning either the nonunion ("Serramonte") rates or the Autohaus Brugger level. Thus, it is fair to conclude from this testimony that Carter's offer, as enhanced by Tracy, was expressly conditioned on the Union's not engaging in a strike. 10 I recognize that the union officials called to testify, Mack, Ortega, and James Coulthurst, essentially denied that such a condition was imposed by either Carter or Tracy. Nonetheless, considering all the surrounding cir- cumstances, including the fact that this was indisputably a last-minute effort to avoid a strike, as well as the mutu- ally corroborative testimony of all these witnesses, in- cluding the four who may be seen as relatively independ- ent, I believe Respondents to have the better of this ar- gument. Accordingly, I conclude that the January 3, 1984 proposal made by Carter and Tracy was condi- tioned on the Union not engaging in a strike. When the strike began the following day that condition occurred and the offer thereupon evaporated. It follows, therefore, that the poststrike efforts of the Union to accept the Jan- uary 3 offer were a nullity. The offer was not outstand- ing and could not be accepted. Accordingly, this allega- tion should be dismissed. Phelps Dodge Brass Co., 272 NLRB 361 (1984).11 4. The Autocenter's withdrawal of recognition The facts with respect to the Autocenter's withdraw- ing recognition of the Union as the representative of its sales staff are not in dispute. On February 1, 1984, a peti- tion signed by 34 of the 63 sales employees (including strikers) appeared on General Manager Richard's desk. All the signatures are dated between January 30 and 10 This was not the first time the condition had been imposed All the "final" offers contained the condition that if it was not accepted and a strike occurred it would automatically be withdrawn in favor of a "final/final" proposal-usually meaning the nonunion rate. I1 In view of my conclusions here, it is unnecessary to resolve the dis- pute created by the varying testimonies surrounding the January 31 meet- ing, in particular the Skonberg-Silver disagreement , to a greater degree than I already have 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD February 1. Richard took the petition to Swig who turned it over to Attorney Skonberg. Immediately there- after, Respondent withdrew its recognition of the Union as the salesmen's representative. However, it is quite clear from this decision that the Autocenter had engaged in numerous unfair labor prac- tices as set forth herein. These include independent 8(a)(1) violations as enumerated in section III, B , of this decision, as well as participating in the bad-faith bargain- ing tactics at the collective-bargaining table. In addition, this Respondent improperly denied commissions to em- ployees who engaged in the strike. That violated Section 8(a)(3). Thus, there are numerous outstanding and as yet unremedied unfair labor practices. In that circumstance the Board has long held that an employer is not free to withdraw recognition from the Union in view of the high probability that its conduct caused or contributed to the employees' dissatisfaction with the union . Such a re- spondent may not benefit from its own misconduct. Ac- cordingly, I conclude that the Autocenter was not privi- leged to withdraw recognition in February 1984 and that such withdrawal violated Section 8(a)(5) and (1) of the Act. See Guerdon Industries, 218 NLRB 658 (1975). THE REMEDY Having found that Respondent has engaged in certain violations of Section 8(a)(1), (3), and (5) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. In addition, I shall recommend that Respondent be required to take certain affirmative action to remedy those violations. In this regard, each Respondent shall be ordered immediately to pay each striker half the commission he or she would otherwise have earned on sales finalized before the strike had he or she not engaged in the strike . Interest shall be paid on those amounts in accordance with the Board's decision in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). CONCLUSIONS OF LAW 1. The Respondents, Toyota of San Francisco; Auto- center Mazda; British Motor Car Distributors, Ltd.; Eu- ropean Motors, Ltd.; and California Porsche- Audi/Lincoln-Mercury are employers engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Local 960, Automotive and Allied Salesmen's Divi- sion, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent Autocenter violated Section 8(a)(1) of the Act by threatening employees with loss of pay if they engaged in a protected strike and by soliciting em- ployees to resign their union membership. 4. Respondent Autocenter violated Section 8(a)(3) and (1) by denying striking employees commissions that they had earned, at least in part, for vehicle sales on orders finalized prior to the strike, but where the vehicle was delivered to the customer during the strike. 5. Respondent Autocenter violated Section 8(a)(5) and (1) by directly dealing with bargaining unit employees with respect to wages, hours, and terms and conditions of employment thereby undermining both the Union's bargaining positions and concomitantly its representative status; by engaging in bargaining tactics designed to de- prive the Union of a fair opportunity to digest and dis- cuss each proposal thereby demonstrating that it was bargaining with a lack of an open mind and a sincere effort to reach agreement; and by withdrawing recogni- tion of the Union as the exclusive collective-bargaining representative of its sales staff. 6. Respondent California Porsche-Audi/Lincoln-Mer- cury violated Section 8(a)(1) of the Act by: threatening employees with discharge and/or loss of jobs if they en- gaged in a protected strike; telling employees that strikes are futile and useless; urging employees to decertify the Union as their representative and soliciting employees to resign their union membership ; encouraging employees to follow the lead of disloyal union members who would not strike; and by promising employees that no contract would be signed, that did not contain an amnesty provi- sion protecting nonstrikers from union discipline. 7. Respondent California Porsche-Audi/Lincoln-Mer- cury violated Section 8(a)(3) and (1) of the Act by deny- ing striking employees commissions that they had earned, at least in part, for vehicle sales on orders finalized prior to the strike, but where the vehicle was delivered to the customer during the strike. 8. Respondent California Porsche-Audi/Lincoln-Mer- cury violated Section 8(a)(5) and (1) by engaging in bar- gaining tactics designed to deprive the Union of a fair opportunity to digest and discuss each proposal, demon- strating that it was bargaining with a lack of an open mind and a sincere effort to reach agreement; and by im- plementing new work rules without first bargaining with the Union. 9. Respondent European Motors, Ltd. violated Section 8(a)(3) and (1) by denying striking employees commis- sions that they had earned, at least in part, for vehicle sales on orders finalized prior to the strike, but where the vehicle was delivered during the strike. 10 Respondent European Motors, Ltd. violated Sec- tion 8(a)(5) and ( 1) by engaging in bargaining tactics de- signed to deprive the Union of a fair opportunity to digest and discuss each proposal, demonstrating that it was bargaining with a lack of an open mind and a sin- cere effort to reach agreement. 11. British Motor Car Distributors, Ltd. violated Sec- tion 8(a)(1) of the Act by maintaining fringe benefit plans limiting employee participants to employees who are not represented by any labor union. 12. Respondent British Motor Car Distributors, Ltd. violated Section 8(a)(5) and (1) by engaging in bargain- ing tactics designed to deprive the Union of a fair oppor- tunity to digest and discuss each proposal , demonstrating that it was bargaining with a lack of an open mind and a sincere effort to reach agreement. 13. The remaining allegations in the complaints are un- proven. TOYOTA OF SAN FRANCISCO On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edia ORDER A. Respondent Autocenter (including Autopacific, Inc., d/b/a Autocenter Mazda, William L. Hughson Co., Inc. d/b/a Toyota of San Francisco), San Francisco, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening employees with loss of pay if they engage in a lawful strike. (b) Soliciting employees to resign their union member- ship. (c) Denying striking employees commissions that they had earned, at least in part, for vehicle sales on orders finalized prior prior to the strike, but where the vehicles were delivered to the customers during the strike. (d) Directly dealing with bargaining unit employees with respect to wages, hours, and terms and conditions of employment thereby undermining both the Union's bargaining position and its statutory status as the employ- ees' collective-bargaining representative. (e) Engaging in bad-faith bargaining tactics such as ul- timatum bargaining, including the use of regressive pro- posals in circumstances where such ultimatums deprive the Union of a fair opportunity to digest and discuss each proposal. (f) Withdrawing recognition of the Union as the col- lective-bargaining representative of its sales staff. (g) 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) Make each striker whole for lost commissions, plus interest, he or she should have earned had they not en- gaged in a strike on January 4, 1984, as set forth in the remedy portion of this decision. (b) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (c) Immediately resume recognition of and, on request, bargain collectively in good faith with Local 960, Auto- mobile and Allied Salesmen's Division, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America in the following appropriate unit and embody in writing and sign any agreement or under- standing that is reached: All new and used car salespersons employed by the Autocenter employers involved herein at their San Francisco, California location, excluding all other 12 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations , the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 805 employees, guards and supervisors as defined in the Act. (d) Post at San Francisco, California, facility copies of the attached notice marked "Appendix C."13 Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent 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 Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. B. Respondent California Porsche-Audi/Lincoln-Mer- cury, San Francisco California, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Threatening employees with discharge or loss of their jobs if they choose to engage in a protected strike. (b) Telling employees that strikes are futile and useless. (c) Urging or suggesting that employees decertify the Union as their collective-bargaining representative and/or soliciting those employees to resign their union membership. (d) Encouraging employees to follow those employees who choose not to strike and promising nonstrikers that it would not sign a contract with the Union unless the Union granted amnesty from union discipline to non- strikers. (e) Denying striking employees commissions that they had earned, at least in part, for vehicle sales on orders finalized prior to the strike, but where the vehicle was delivered to the customer during the strike. (f) Engaging in bad-faith bargaining tactics such as ul- timatum bargaining, including the use of regressive pro- posals in circumstances where such ultimatums deprive the Union of a fair opportunity to digest and discuss each proposal. (g) Implementing new work rules without first giving the Union an opportunity to bargain over them. (h) 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) Make each striker whole for lost commissions, plus interest, he or she should have earned had they not en- gaged in a strike on January 4, 1984, as set forth in the remedy portion of this decision. (b) On request, bargain collectively in good faith with Local 960, Automobile and Allied Salesmen's Division, International Brotherhood of Teamsters, Chauffeurs, 12 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Warehousemen and Helpers of America in the following appropriate unit and embody in writing and sign any agreement or understanding that is reached: All new and used car salespersons employed by California Porsche-Audi/Lincoln-Mercury at its San Francisco, California location, excluding all other employees, guards and supervisors as defined in the Act. (c) Rescind the work rules implemented in January and February 1984 and expunge any discipline that has been imposed under them. (d) Post at San Francisco, California facility copies of the attached notice marked "Appendix D."14 Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent 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 Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. C. Respondent European Motors, Ltd., San Francisco, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Denying employees commissions that they had earned, at least in part, for sales of vehicles on orders fi- nalized prior to the strike and where the vehicle was de- livered to the customer during the strike. (b) Engaging in bad -faith bargaining tactics such as ul- timatum bargaining, including the use of regressive pro- posals, in circumstances where such ultimatums deprived the Union of a fair opportunity to digest and discuss each proposal. (c) 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) Make each striker whole for lost commissions, plus interest, he or she should have earned had he or she not engaged in any strike on January 4, 1984, as set forth in the remedy portion of this decision. (b) On request, bargain collectively in good faith with Local 960, Automobile and Allied Salesmen's Division, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America in the following appropriate unit, and embody in writing and sign any agreement or understanding that is reached: All new and used car salespersons employed by Eu- ropean Motors, Ltd. at its San Francisco, California location, excluding all other employees, guards and supervisors as defined in the Act. 14 See fn. 13, supra. (c) Post at San Francisco, California facility copies of the attached notice marked "Appendix E."15 Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent 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 Respond- ent to ensure that the notices are not altered , defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. D. Respondent British Motor Car Distributors, Ltd., San Francisco, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Maintaining fringe benefit plans that contain terms barring participation therein by employees who are rep- resented by a labor union. (b) Engaging in bad -faith bargaining tactics such as ul- timatum bargaining, including the use of regressive pro- posals in circumstances where such ultimatums deprive the Union of a fair opportunity to digest and discuss each proposal. (c) 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) On request, bargain collectively in good faith with Local 960, Automobile and Allied Salesmen's Division, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America in the following appropriate unit, and embody in writing and sign any agreement or understanding that is reached: All new and used car salespersons employed by British Motor Car Distributors, Ltd., at its San Francisco, California location, excluding all other employees, guards and supervisors as defined in the Act. (b) Post at its San Francisco, California facility copies of the attached notice marked "Appendix F."16 Copies of the notice, on forms provided by the Regional Direc- tor for Region 20, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent 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 Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 15 See fn. 13, supra "See See fn 13, supra TOYOTA OF SAN FRANCISCO IT IS FURTHER RECOMMENDED that the remaining alle- gations in the complaints be dismissed. APPENDIX A OPINION AND DECISION ISSUES: The Employers state the issues as follows: "1. Whether the Union violated the terms of the collective bargaining agreement by failing to inform the Employers of the more favorable terms con- tained in the Autohaus Brugger contract. "2. Whether under the terms of the collective bargaining agreement between the Employers and the Union, the Employers are entitled to damages resulting from the Employers' payment to their salespersons of wages and fringe benefits higher than those required by the Autohaus Brugger con- tract. If so, whether the Employers are entitled to damages accured from July 1980, the date of the Autohaus Brugger contract, or, alternatively, from August 20, 1983, 120 days prior to the filing of the Employers' grievance. "3. Whether the Employers complied with the terms of the collective bargaining agreement when they implemented, in December 1983, wage rates and fringe benefits consistent with the Autohaus Brugger contract. "4. Whether the Employers complied with the terms of the collective bargaining agreement by de- ducting from the employees' December 1983 wages the difference between what the Employers paid to the employees under the Autohaus Brugger con- tract for that time period. "5. Whether the Union's strike in January 1984 violated the no-strike provision of the Autohaus Brugger contract adopted by virtue of the Most Fa- vored Nations clause. If so, for what damages is the Union liable to the Employers." (Er. Br., pp. 4-5.) The Union states as an issue the following: "It is the position of Local 960 that the griev- ances were not timely in that they were submitted after the agreement had been terminated pursuant to section 31 . ..." (Jt. Ex. 5.) AGREEMENT PROVISIONS: "The 1980-1983 collective bargaining agreements between the Employers and the Union contain the following provisions: "Section 21. "The Union agrees that any more favorable terms agreed to by the Union with any other dealer shall automatically become a part of this Agreement. "Section 28. Waiver of Stale Claims. "(a) All complaints concerning violations of this Agreement and all disputes or grievances concern- 807 ing the meaning, interpretation or enforcement of this Agreement, must be taken up by either party with the other by giving written notice thereof within one hundred twenty (120) calendar days of the occurrence thereof, or the same shall be deemed waived and abandoned, unless such time has been extended by mutual agreement between the Union and the Employer. "(b) It is specifically understood and agreed that all claims for commissions due or payable under the terms and provisions of this contract must be pre- sented in writing within one hundred twenty (120) calendar days after the dealer furnishes the salesper- son and the Union with the commission reports and reports of exempt sales and house deals specified in Section 16 hereof, or such claims shall be consid- ered waived and abandoned and not due and pay- able under any of the terms or provisions of this Agreement. "Section 31. Expiration and Revision. "This Agreement shall be in effect on June I,' 1980, and shall continue in effect until June 1, 1983, and from year to year thereafter for like terms, sub- ject, however, to revision by notice to writing by either party to the other sixty (60) days prior to the anniversary date thereof. During such sixty-day period, conferences shall be held looking toward a revision of this Agreement. If negotiations extend beyond the anniversary date or expiration of the Agreement, no change shall be made in any terms of conditions of employment unless expressly agreed to by the parties or until negotiations are ter- minated by economic action of either party after first giving forty-eight (48) hours written notice thereof. All provision and wages shall be effective as of the anniversary date of said agreement. "The 1980-1983 Autohaus Brugger contract con- tains the following provision: "ARTICLE XI-NO STRIKES OR WORK STOP- PAGES, OR LOCKOUTS-(a) During the period of this Agreement the Union agrees that its members will not engage in any strike or stoppage of work, and the Employer agrees not to engage in nay lock- outs." (Er. Br., pp. 2-3) BACKGROUND: The Collective Bargaining Agreements between the Parties, since at least 1968, contained the Most Favored clause which appears in Section 21 of the 1980-1983 Agreement. Teamsters Local Union 960 has an agreement with Autohaus Brugger in Redwood City, the first contract being executed July 4, 1980. A subsequent agreement was negotiated with Autohaus Brugger in July of 1983. The most recent agreement, between the Employers' parties to this arbitration and Local 960, terminated on June 1 , 1983. The Parties were in negotiations on De- cember 20, 1983, and, as a result of a conversation at 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD those negotiations which will be considered in detail hereafter, the employers filed a grievance. The grievance reads as follows: "Grievance Against Local 960, dated 12-20-83. "We hereby file a grievance under Section 21 for union violation by failing to inform dealers of exe- cution of a contract with more favorable terms. Re- quest remedy of reduction favorable terms. Request remedy of reduction of commissions and fringe ben- efits for 120 calendar days prior to date hereof, and hereafter. "This is filed on behalf of all members of DASSA and Royal Motors." (Tr. 17.) On or about December 22, 1983, the Employers imple- mented what they considered to be certain more favor- able terms contained in the Autohaus Brugger contract (Er. Ex. 1) than their own Agreement. On January 4, 1984, the Union struck all three Em- ployers in this case for a period of approximately one month. KNOWLEDGE OF AUTOHAUS BRUGGER AGREEMENT BY EMPLOYERS: A number of the issues in this case turn on the ques- tion of when the Employers had knowledge of the terms of the Autohaus Brugger contract with Local 960. During the 1980 Agreement negotiations, the Union sought a provision requiring "just cause" for discipline. According to the testimony of James Carter, the negotia- tor for the Employers, in an effort to obtain such a pro- vision, Union representative Burt Boltuch informed Carter that the Union had reached "tentative agreement on just cause" with Autohaus Brugger, but admitted that those Parties still had other contract issues to resolve (Tr. 36). Carter requested a copy of the Agreement and, according to Carter, Boltuch responded, "Well, we really don't have an agreement yet, but we've got a ten- tative agreement on just cause." (Tr. 36). Thereafter, Carter asked Jules Barsotti, President of European Motors, to contact Autohaus Brugger to learn of the "just cause" language which the Union claimed had been agreed to. Brugger refused to reveal anything, including whether "just cause" language had been ac- cepted or whether any contract existed. During the 1983 negotiations, the Union again pro- posed a "just cause" provision, and in that process asked Barsotti to again contact Autohaus Brugger to find out what language, if any, that company had accepted with reference to a "just cause" provision. Barsotti was unable to immediately contact Brugger and before such a con- tact could be made, according to Carter, the Union with- drew its demand concerning "just cause" in late October 1983. In October of 1983, the negotiations between the Par- ties continued over economic issues, and Carter was con- sidering the possibility of trading a "just cause" provision for a better economic package and, therefore, he request- ed Barsotti to again get in touch with Brugger with ref- erence to obtaining "just cause" language which Brugger might have accepted. Barsotti then informed Carter that he was told that snot only did Autohaus Brugger have a contract which con- tained a "just cause" provision, but also that Autohaus Brugger's contract contained provisions which were more favorable than those in the Employer's Agreement. At the next negotiating session, December 20, 1983, Carter renewed his request for a copy of the Brugger contract and, at the same time, prepared and presented the grievance which was reproduced hereinabove. Accordingly, it is the Employers' position that they did not know the terms of the Autohaus Brugger con- tract until the period in and around December 20, 1983. Union representative Ortega testified that during the 1980 negotiation, Boltuch informed Carter that Autohaus Brugger and Local 960 had reached a full agreement which included a "just cause" provision (Tr. 68). Whether the Employers were aware or should have been aware of all of the terms of the Autohaus Brugger contract prior to December 20, 1983, goes to the ques- tion of the relief sought by the Employers in this case. And having been told, according to the Employers on December 20, 1983, that Autohaus Brugger had a more favorable agreement than they had, would still not pre- clude consideration of the Employers' issue in this case since that circumstances could be viewed as a continuing violation of their Agreement, based upon their theory of this case. THE MOST FAVORED CLAUSE: Section 21 of the Agreement reads: "The Union agrees that any more favorable terms agreed to by the Union with any other dealer shall automatically become a part of this Agreement." (Jt. Ex. 2). The Union argues that the Most Favored Clause cannot be interpreted in a completely one-sided manner to pro- vide that only the provisions which are more favorable to the dealers can be incorporated into their Agreement; that the Autohaus Brugger contract contains many terms, including "just cause," no Sunday openings, and $300 minimum commissions which are more favorable to Employees than the San Francisco Agreement. The Agreement, on its face, states that "automatically" any more favorable terms agreed to by the Union with any other dealer shall become a part of the San Francis- co Agreement. The language does not provide that the San Francisco dealers must take the entire Autohaus Brugger contract. The provision speaks of "more favor- able terms." Clearly, those favorable terms can only relate to more favorable terms for the San Francisco Employers over San Francisco terms because those are the terms which "automatically" become part of the San Francisco Agreement. And it is precisely to that condi- tion which the Most Favored clause is to apply. THE ISSUES: ISSUE 1 The Employer states the issue : "Whether the Union violated the terms of the collective bargaining agreement TOYOTA OF SAN FRANCISCO by failing to inform the employers of the more favorable terms contained in the Autohaus Brugger contract." (Er. Br., p. 2). There is a conflict in the evidence as to when the Au- tohaus Brugger contract was executed. There is a con- flict in the evidence as to what the Parties exchanged in conversation at the 1983 negotiations concerning its ex- istence or nonexistence . But, there is nothing in the San Francisco Agreement providing an affirmative duty on the part of the Union to inform the San Francisco deal- ers of the Autohaus Brugger contract. The fact is that the San Francisco dealers did have some indication that negotiations were going on in 1980 between Autohaus Brugger and Local 960, and they could have formally asked in writing at that time for a copy of the Agree- ment. The fact is that they did not ask for such a copy of the Agreement until December 20, 1983, at which time such an Agreement was supplied to them. DECISION AS TO ISSUE 1: The Union did not violate the terms of the Collective Bargaining Agreement by failing to inform the Employ- ers of the more favorable terms contained in the Auto- huas Brugger contract. ISSUE 2 Whether under the terms of the Collective Bargaining Agreement between the Employers and the Union the Employers are entitled to damages resulting from the Employers' payment to their salespersons of wages and fringe benefits higher than those required by the Auto- haus Brugger contract. If so, whether the Employers are entitled to damages accrued from July 1980 to the date of the Autohaus Brugger contract or alternatively from August 20, 1983, 120 days prior to the filing of the Em- ployers' grievance. The Employers are not entitled to any "damages," as such. The relief that the Employers are entitled to are those applicable "favorable terms" uni- laterally put into effect in December of 1983, as dis- cussed hereinafter. DECISION AS TO ISSUE 2: The Employers are not entitled to "damages," as such, from July 1980, the date of the Autohaus Brugger con- tract or alternatively from August 20, 1983, 120 days prior to the filing of the Employers' grievance. ISSUE 3 Whether the Employers complied with the terms of the Collective Bargaining Agreement when they imple- mented, in December 1982, wage rates and fringe bene- fits consistent with the Autohaus Brugger contract. ISSUE 4 Whether the Employers complied with the terms of the Collective Bargaining Agreement by deducting from the Employees' December 1983 wages the difference be- tween what the Employers paid to the Employees from August 20-December 20 and what was actually due the Employees under the Autohaus Brugger contract for that time period. The grievance was filed on December 20, 1983. That was the first date that the San Francisco Employers had the right to implement wage rates and fringe benefits consistent with the Autohaus Brugger contract, as dis- cussed hereinafter. DECISION AS TO ISSUE 4: The Employers did not comply with the terms of the Collective Bargaining Agreement by deducting from the Employers' December 1983 wages the difference be- tween what the Employers paid to the Employees from August 20-December 20 and what was actually due the Employees under the Autohaus Brugger contract for that time period. ISSUE 5 Whether the Union's strike in January 1984 violated the no-strike provision of the Autohaus Brugger contract adopted by virtue of the Most Favored Nations clause. If so, for what damages is the Union liable to the Employ- ers. The no-strike provision in the Autohaus Brugger con- tract is the same as the no-strike provision in the San Francisco contract and, therefore, it cannot be held that the Autohaus Brugger contract no-strike clause is more favorable. DECISION AS TO ISSUE 5: The claim of the Employers in Issue 5 is denied. ISSUE 6 This issue has to do with the Union 's claim that there was a waiver and, therefore, the grievance was not timely. The record does not establish that there was such a waiver as indicated in the prior discussion hereinabove. It is noted that even if it is held that the San Francisco dealers should have invoked the Most Favored clause in 1980, but did not do so, the existence of this provision, which was not being enforced, was a continuing viola- tion of the San Francisco Agreement. Therefore, when the grievance was filed on December 20, 1983, it was a timely filing. DECISION AS TO ISSUE 6: The Union's position as to waiver and timeliness is denied. DECISION AS TO ISSUE 3: The Employers did comply with the terms of the Col- lective Bargaining Agreement when they implemented, on December 22, 1983, wage rates and fringe benefits consistent with the Autohaus Brugger contract, as dis- cussed hereinafter. IMPLEMENTATION AND RELIEF: The original grievance in this case was filed on De- cember 20, 1983. The remedy requested was for "reduc- tion of commissions and fringe benefits for 120 calendar days" prior to December 20, 1983, and "hereafter." The reference to 120 days in Section 28 has to do with the DECISIONS OF NATIONAL LABOR RELATIONS BOARD wring which grievances can be filed. It does not ,s the period from which a "remedy" is to apply. this case, the applicable remedy shall be measured .om December 20, 1983, forward. By a letter dated September 10, 1984, Employer Coun- sel, John M. Skonberg, set forth the "Actual Implemen- tation" of the most favored clause by the Employers, as follows: "Actual Implementation . Having stated the Em- ployers' formal positons, it should be noted that res- olution of this issue is not essential to the determina- tion of the grievance involving British Motors or European Motors. Those Companies adopted, in their entirety, the provisions of the Autohaus Brug- ger contract dealing with commissions, pack, hours, draw, holiday pay, vacations, health and welfare and pension. No portion of these provisions was adopted wihtout adopting the entire provision. Nei- ther Company has ever had Sunday openings and, therefore, never considered the issue of Sunday pay. Similarly, neither Company has ever had a commis- sion under $300.00 and, therefore, never considered the issue of minimum commissions. "With regard to California Porsche-Audi/San Francisco Lincoln-Mercury, that Company adopted, in their entirety, the provisions of the Autohaus Brugger contract concerning hours, draws, holiday pay, vacations, health and welfare and pension. In regard to commissions and pack, however, the Company implemented a higher commission rate and eliminated the minimum commission (see Dec- laration of Peter Kolinsky, attached to Motion for Clarification of Record). Additionally, the Compa- ny remained open on Sundays without paying Sunday pay." It is found that the Employers properly implemented the Most Favored clause in relation to the Autohaus Brugger contract, with the following exception: Those Employers who remained open on Sundays, without paying Sunday pay, did not properly apply the Most Favored clause. The Autohaus Brugger contract provided in Article VII, Section 5, that "The dealership shall not be open on Sundays." This provision is clearly favorable to the Employees of Autohaus Brugger and cannot be read as a more favorable condition for San Francisco when read as providing Sunday work with no pay. There is nothing in Article VII, Section 5, of the Autohaus Brugger contract dealing with pay or no pay, since it clearly provides that no work shall be performed on Sunday. DECISION AS TO IMPLEMENTATION AND REMEDY: The Arbitrator remands to the Parties the calculation of any monies due any of the affected Employers or any affected Employees, in accordance with the "Actual Im- plementation" reproduced above, for the period Decem- ber 20, 1983, forward. DECISIONS: 1. All of the above Decisions are hereby affirmed. 2. The Arbitrator retains jurisdiction over any dis- putes, questions or issues that may arise between the Par- ties over the implementation of the above Decisions in any or all respects. /s/ Sam Kagel Arbitrator APPENDIX B ARBITRATION OPINION AND AWARD INTRODUCTION This arbitration arises pursuant to a collective bargain- ing agreement between AUTOPACIFIC INC. and WIL- LIAM L. HUGHSON CO., INC., hereinafter the "Com- pany" or the "Employer," and TEAMSTERS LOCAL 960, AUTOMOBILE AND ALLIED SALESMEN'S DIVISION, I. B.T., hereinafter the "Union," under which GERALDINE M. RANDALL was selected to resolve the controversy between the parties and pursuant to which her Award shall be final and binding upon them. At the hearing held December 16, 1983 and June 5, 1984, the parties were afforded full opportunity for ex- amination and cross -examination of witnesses , introduc- tion of relevant exhibits and argument . The matter was submitted on written closing briefs filed on behalf of both parties. ISSUES The parties stipulated to the following issues, with the exception of the fourth issue, which was framed by the Arbitrator in accordance with the agreement of the par- ties: (1) Whether the Employer violated the collective bar- gaining agreement by unilaterally implementing its final offer on September 1, 1983. If so, what should the remedy be. (2) Whether the Union violated the collective bargain- ing agreement by failing to inform the Employer of the more favorable terms contained in the Autohaus Brugger contract. (3) Whether, under the terms of the collective bargain- ing agreement, the Employer is entitled to damages re- sulting from the Employer's payment to its salespersons of wages and fringe benefits higher than those required by the Autohaus Brugger contract. If so, whether the Employer is entitled to damages accrued from July 1980, the date of the Autohaus Brugger contract, or, alterna- tively, from August 20, 1983 , 120 days prior to the filing of the Employer's grievance. (4) Whether the no-strike provision of the Autohaus Brugger contract should be incorporated into the collec- tive bargaining agreement under the "most favored nation" clause and, if so, whether the January-February 1984 strike violated that provision . If a contract violation is found, what should the remedy be? (5) Whether the Employer's grievance concerning Issues 3 and 4 was timely. TOYOTA OF SAN FRANCISCO (6) Whether the Employer violated the collective bar- gaining agreement when it implemented , in December 1983, wage rates and fringe benefits consistent with the Autohaus Brugger contract. (7) Whether the Employer violated the collective bar- gaining agreement by deducting from the employees' wages the difference between what the Employer paid to the employees from August 20-December 20, 1983, and the rates in effect during that time period under the Au- tohaus Brugger contract. PERTINENT CONTRACT PROVISIONS Provisions of the 1980-83 Contract Between the Parties SECTION 21 The Union agrees that any favorable terms agreed to by the Union with any other dealer shall auto- matically become a part of this Agreement. SECTION 26. NO STRIKES OR WORK STOPPAGES OR LOCKOUTS (a) During the period of this Agreement the Union agrees that its members will not engage in any strike or stoppage of work and the Employer agrees not to engage in any lockouts. SECTION 28. WAIVER OF STALE CLAIMS (a) All complaints concerning violations of this Agreement and all disputes or grievances concern- ing the meaning, interpretation or enforcement of this Agreement, must be taken up by either party with the other by giving written notice thereof within one hundred twenty (120) calendar days of the occurrence thereof, or the same shall be deemed waived and abandoned, unless such time has been extended by mutual agreement between the Union and the Employer. (b) It is specifically understood and agreed that all claims for commissions due or payable under the terms and provisions of this contract must be pre- sented in writing within one hundred twenty (120) calendar days after the dealer furnishes the salesper- son and the Union with the commission reports and reports of exempt sales and house deals specified in Section 16 hereof, or such claims shall be consid- ered waived and abandoned and not due and pay- able under any of the terms or provisions of this Agreement. SECTION 31. EXPIRATION AND REVISION This Agreement shall be in effect on June 1, 1980, and shall continue in effect unitl June 1, 1983, and from year-to-year thereafter for like terms, sub- ject, however, to revision by notice in writing by either party to the other sixty (60) days prior to the anniversary date thereof. During such sixty-day period, conferences shall be held looking toward a revision of this Agreement. If negotiations extend beyond the anniversary date or the expiration of the Agreement, no change shall be made in any terms or conditions of employment unless expressly 811 agreed to by the parties or until negotiations are ter- minated by economic action of either party after first giving forty-eight (48) hours written notice thereof. All revision and wages shall be effective as of the anniversary date of said agreement. Provisions of the 1980-83 Autohaus Brugger Contract ARTICLE XI-NO STRIKES OR WORK STOP- PAGES, OR LOCKOUTS (a) During the period of this Agreement, the Union agrees that its members will not engage in any strike or stoppage of work, and the Employer agrees not to engage in any lockouts. FACTS The parties' collective bargaining agreement has, for a number of years, contained the "most favored nation" clause quoted above (Section 21 of the contract). In July 1980 and subsequently in July 1983, the Union executed an agreement with Autohaus Brugger in Redwood City which contains terms the Employer considers to be more favorable than those of its own 1980-83 agreement. The parties' 1980-83 agreement expired in June 1983, but by late August they still had not reached agreement on a successor contract. On August 29, the Employer presented the Union with its "final offer" and expressed its intention to implement that offer on September 1, 1983. The Union rejected this offer, and, believing the parties were at impasse, the Employer unilaterally imple- mented the terms of that offer on September 1. At the time, the Employer's bargaining representative was un- aware of the provisions of Section 31 of the agreement, which provides, "[i]f negotiations extend beyond the an- niversary date or expiration of the Agreement, no change shall be made in any terms or conditions of em- ployment unless expressly agreed to by the parties or unitl negotiations are terminated by economic action of either party after first giving forty eight (48) hours writ- ten notice thereof." For the most part, the terms implemented by the Em- ployer on September 1, 1983, were as favorable, but not more favorable, to the Employer than the similar provi- sions in the Autohaus Brugger agreement (exceptions are discussed in the Opinion). Specifically, the Autohaus Brugger commission structure, holiday and vacation plan and pension plan were all more favorable to the Employ- er than similar provisions in its own contract with the Union. However, the Autohaus Brugger contract con- tains a "just cause" provision. This employer successfully resisted incorporating any "just cause" provision into its collective bargaining agreement. On September 23, 1983, the Union filed a grievance protesting the Employer's implementation of its final offer. On November 20, the Employer, without prior notice, locked employees out for one-half hour in an at- tempt to toll its liability for damages. The Employer did not learn until December 20, 1983, that the Autohaus Brugger contract contained terms more favorable than those in the parties' expired contract. However, in the 1980 and again in the 1983 negotiations, the Union told 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Employer that it had negotiated a "just cause" provi- sion with Autohaus Brugger. In 1980, the Employer's representative requested a copy of the Autohaus Brugger agreement from the Union, but was told that, at that point, it was only a ten- tative agreement. The Employer did not subsequently re- quest of the Union verbally, or in writing, a copy of the Autohaus Bragger contract. A few attempts over the years by the Employer to obtain information about the contract directly from Autohaus Brugger were unsuc- cessful until December 1983. Carter also testified that in 1980, the Union struck five dealerships without providing 48 hours notice. On December 20, 1983, the Employer filed a hastily handwritten grievance protesting the Union's failure to inform it of the more favorable terms contained in the Autohaus Brugger contract. On January 4, 1984, the Union struck the Employer after giving 48 hours notice. The Employer then imple- mented the more favorable terms of the Autohaus Brug- ger contract in the manner it deemed appropriate. On January 30, 1984, the Employer filed another grievance protesting the Union's failure to implement the more favorable provisions of the Autohaus Brugger con- tract and the strike. Rudy Ortega, Secretary-Treasurer of the Union, testi- fied that at various times over the past years, the Em- ployer's bargaining representative, Jim Carter, suggested that he should quit penalizing the San Francisco dealers and attempt to organize dealers in Marin and down the Peninsula, and that Carter suggested the Union should negotiate less favorable contracts initially and later bring those contracts up to parity with San Francisco. Carter admitted that he suggested that the Union organize out- side of San Francisco, but denied that he told them how it ought to do so. The first day of hearing in this matter was held on De- cember 16, 1983, prior to the Employer's discovery of the Autohaus Brugger contract. The Employer's request for a re-opening of the hearing was granted by the Arbi- trator. The parties' briefs in this matter were received by the Arbitrator on October 22, 1984. On October 31, 1984, the Union forwarded a copy of the decision of Arbitra- tor Sam Kagel in a case between the Union and several employers not involved in this case which considered issues similar to those presented here. Kagel held that the Union did not violate the terms of the collective bargain- ing agreement by failing to inform the employers of the more favorable terms contained in the Autohaus Brugger contract; that the employers were not entitled to dam- ages for payments made prior to their discovery of the Autohaus Bragger contract in excess of those which would have been required had the more favorable terms been adopted; that the employers complied with the terms of the collective bargaining agreement when they implemented prospectively the more favorable terms of the Autohaus Bragger contract; that the employers vio- lated the contract by deducting from their employees' wages the difference between what was paid to them by the employers and what would have been due under the Autohaus Bragger contract; that the Union's January 4, 1984, strike did not violate the agreement; that the em- ployers did not waive their right to implement the "most favored nation" clause; and that the employers' griev- ance was timely. The Employer's response to the Union's submission of the Kagel award and its argument in connection therewith was received on November 7, 1984. POSITION OF THE COMPANY Effect of Prior Arbitration Award The Union has failed to establish two of the three ele- ments necessary for collateral estoppel. The issues before Arbitrator Kagel were not identical to those presented in the instant arbitration, nor was the Kagel arbitration a prior "action" or "adjudication." The Kagel arbitration occurred on May 22, 1984, after the instant matter had commenced . Moreover, the Employer in the present case was not a party to the Kagel arbitration and has no cor- porate or financial connection with any of the employers who were involved in that matter. The doctrine of stare decisis, like collateral estoppel, is a judicial doctine of questionable value in the arbitration context. It is elementary that arbitrators are not bound by prior arbitration decisions in the same fashion as courts are bound by judicial precedent. Alleged Violation of Section 31 The Employer did not violate Section 31 by imple- menting its last offer on September 1, 1983. The Employ- er complied with the notice requirement of Section 31 by informing the Union on August 29 of its intention to do so. The Union admitted receiving the offer on August 29 and being informed ley the Employer that it would im- plement the offer on September 1. Section 31 does not narrowly define "economic action" to be limited solely to strikes and lockouts. Uni- lateral implementation of the September 1 offer was clearly an economic action designed to exert pressure on the Union to modify its position in negotiations. There- fore, it had the same effect as other forms of economic action such as strikes, picketing, and lockouts . Federal law recognizes the right of an employer to unilaterally implement an offer following a bargaining impasse. The parties had not observed the literal requirements of Section 31 in the past. For example , in 1980, the Union struck five auto dealers without giving the requi- site forty-eight hours written notice ; it admitted that this was done for tactical reasons. Moreover, the Union did not object on August 29 when it was informed of the Employer's intention to implement its final offer. In the past, the Union had routinely discussed alleged violations of the collective bargaining agreement prior to instituting a formal grievance. The Union's actions in 1980 and fail- ure to object in 1983 evidenced its intent not to enforce the provisions of Section 31. Under the equitable doctrines of either estoppel or laches, the Union is precluded from relying on Section 31. Since the Union ignored the notice requirements of that section in the past, it could not enforce them unless it gave affirmative notice in advance of its intention to do so. TOYOTA OF SAN FRANCISCO Applicability of the "Most Favored Nation" Clause The "most favored nation" clause of the contract enti- tled the Employer to implement the more favorable terms of the Autohaus Brugger contract on September 1 and December 22, 1983. That clause survived the expira- tion of the collective bargaining agreement and automati- cally incorporated any more favorable terms of the Au- tohaus Brugger agreement. Implementation of the Auto- haus Brugger terms does not constitute a change within the meaning of Section 31, but is rather a change permit- ted or required by the contract itself. In fact, such a change is not a change in the contract terms at all, but merely an implementation of agreed provisions of the contract. The Employer has not waived its right to implement the "most favored nation" clause. The plain language of the clause indicates that it is self-enforcing and self-exe- cuting. More favorable terms contained in other con- tracts automatically become a part of the Employer's contract. No affirmative action on its part is required to realize the benefits of the clause. Moreover, there can be no waiver or right unless there is a knowledge of the circumstances giving rise to the right. Here, the Employer neither knew nor should have known of the existence of the more favorable terms of the Autohaus Brugger contract until December 20, 1983. The Union contends that any implementation of more favorable terms in accordance with the "most favored nation" clause constitutes a change within the meaning of Section 31, and cannot be accomplished without meet- ing the preconditions of Section 31. This argument fails to recognize that Section 31 is intended only to regulate extra-contractual changes, not changes permitted or re- quired by the contract itself. Union's Failure to Inform the Employer of the Autohaus Brugger Contract Terms The Union's failure to inform the Employer of the more favorable terms of the Autohaus Brugger contract is a continuing violation of the collective bargaining agreement. Thus, even if it is found that the Employer waived its right to past application of the more favorable terms, the principle of waiver cannot affect the Employ- er's right to prospective application. The Employer is entitled to implement those terms it deems more favorable and is not required to adopt all the terms of the Autohaus Brugger contract. The Union's "all or nothing" interpretation of the clause would lead to totally anomalous results. Employer's Claim for Damages Against the Union Because the Union breached its implied duty to inform the Employer of the Autohaus Brugger contract, it must be required to reimburse the Employer for all commis- sions and other payments made by the Employer in excess of those required by the Autohaus Brugger con- tract after that agreement was executed. POSITION OF THE UNION Effect ofPrior Arbitration Award Under the doctrine of collateral estoppel , Arbitrator Sam Kagel's decision concerning application of the 813 "most favored nation" clause to several dealers consti- tutes a final and binding determination of issues identical to those herein. The Company's September 1, 1983 Unilateral Implementa- tion of its "Final Offer" In unilaterally implementing its final offer on Septem- ber 1, 1983, the Company clearly violated Section 31 of the collective bargaining agreement. That implementa- tion did not constistue economic action as contemplated by Section 31. The Union has not waived its right to enforce Section 31. The Company's liability is not tolled by the thirty- minute lockout on November 20, 1983. The Company should be required to rescind its unilat- eral action of September 1 and compensate employees under the terms of the 1980-83 agreement from Septem- ber 1 to January 4, 1984, when the agreement was termi- nated in accordance with the terms of Article 31. Applicability of the "Most Favored Nation" Clause The "most favored nation" clause does not apply to the Autohaus Brugger contract. The provisions of the Autohaus Brugger contract more favorable to the dealers cannot be severed from its just cause provision. In nego- tiations, the dealers were unwilling to exchange even a "Mickey Mouse" just cause provision for economic con- cessions. It is therefore obvious that the Autohaus Brug- ger contract as a whole was and is unacceptable to the dealers. Moreover, the Employer has waived reliance on the "most favored nation" clause. At no time until December 1983 did any Employer representative request a copy of the Autohaus Brugger contract, even though its attorney was aware that a tentative agreement had been reached with Autohaus Brugger on just cause. The Employer's representative had reason to believe that any contract ne- gotiated outside San Francisco would likely be more fa- vorable to the dealers. Accordingly, it cannot reasonably be asserted that they had no reason to expect that the Autohaus Brugger contract contained provisions more favorable than those in the San Francisco contract. Even if the "most favored nation" clause is applicable, it should not be applied retroactively. First, under the theories of waiver and estoppel, the Employer should be deemed to be entitled to implement the Autohaus Brug- ger terms only prospectively. Second, the public policy of the State of California is to ensure that debtors and their families retain enough money to maintain a basic standard of living so that the debtor has a fair chance to remain a productive member of the community. There- fore, employees' wages should not be subject to deduc- tions for wages which the Employer contends were overpaid in the past. Alleged Breach of No-Strike Clause It was stipulated that prior to taking strike action, the Union gave proper notice as required by Section 31 of the collective bargaining agreement . Thus, there was ob- viously no breach of the no-strike clause. 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The no-strike provisions of the Autohaus Brugger con- tract are in relevant part identical to those in the San Fancisco contract. Thus, that clause is not more favor- able to the Employer, and cannot be incorporated by virtue of the "most favored nation" clause. Employer's Claim for Damages Against the Union There was no contract breach by the Union which would support any award of damages. Nothing in the contract required the Union to inform the Company of the more favorable provisions of the Autohaus Brugger contract. Parties are obliged to furnish information rele- vant to the administration of the agreement only when the other party makes a request or demand. As soon as a request for the Autohaus Brugger contract was made by the Company's representative, it was supplied. More- over, the Union did advise the Employer that a contract was being negotiated with Autohaus Brugger. Thus, it should be deemed to have substantially complied with any disclosure obligations it might be deemed to have. OPINION Effect ofPrior Arbitration Award The award of Arbitrator Sam Kagel described in "Facts" supra involved the Union and several employers with whom it had agreements identical to that in ques- tion here. The Union contends that the issues before Kagel were also identical to those in this case, that his decision is final and binding, and that the dealers in- volved in the Kagel arbitration are in privity to the Em- ployer herein because of their pattern of joint collective bargaining with the Union and their representative by the same attorneys. The doctrine of collateral estoppel is not cognizable in arbitration proceedings, at least not with the same force it has in judicial proceedings. It is well recognized that arbitrators are not obliged to follow previous decisions. This does not mean, however , that such decisions are ig- nored. Quite to the contrary, numerous arbitrators have noted that stability in collective bargaining relations and regard for the arbitration process requires acceptance by an arbitrator of an interpretation of the parties ' contract rendered by a previous arbitrator unless there is some good reason to disregard it. See Arbitrator Russell A. Smith in 0 & S Bearing Company, 12 LA 132, 135. Simi- larly, there is general agreement that great weight should be given to interpretations of identical contract provi- sions adopted by companies which negotiate jointly with a union. See, for example, Arbitrator Whitley McCoy in American-St. Gobain Corp., 39 LA 306. Of course, prior awards are authoritative only with re- spect to identical issues. In the present case, as discussed below, some of the issues in this case are identical to those decided by Arbitrator Kagel and some are not. To the extent they are identical, Arbitrator Kagel's decisions have been followed, first, because no good reason ap- pears to disregard them, and, second, because this Arbi- trator would have decided those issues in the same way in any event. Issue One. Employer's Unilateral Implementation of its Final Offer on September 1, 1983. No issue even remotely related to this was raised before Arbitrator Kagel. The Employer's violation of Section 31 of the agree- ment is clear. Section 31 provides that in the event nego- tiations extend beyond the expiration of the agreement, "no change shall be made in any terms or conditions of employment unless expressly agreed to by the parties or until negotiations are terminated by economic action of either party after first giving forty eight (48) hours writ- ten notice thereof." The Employer's implementation of its last offer cannot [be] construed to be "economic action" as contemplated by Section 31. In the jargon of labor relations, "economic action" generally refers to a strike or lockout. Moreover, the construction of the con- tract proposed by the Employer would render the provi- sion meaningless . As the Union correctly notes, that in- terpretation amounts to the senseless "no change shall be made . . . unless a change is made." The Employer's argument that the Union waived its right to enforce Section 31 because in 1980 it went on strike without giving 48 hours notice is rejected. Even if the Union arguably waived thereby its right to notice, it could not be deemed to have waived its right to insist that the Employer take economic action before imple- menting its last offer. The Employer's half-hour lockout on November 20, 1983, does not operate to toll its liability for the viola- tion. No notice was given prior to the lockout as re- quired by Section 31. Any waiver of the right to enforce the notice requirements of Section 31 was extinguished by the filing of the grievance on September 23, 1983. In so doing, the Union unequivocally put the Employer on notice [of] its intent to demand compliance with Section 31. In light of this finding it is unnecessary to consider whether the half-hour lock out constituted a bona fide economic action. It remains to be determined the appro- priate remedy for the contract violation. In this regard, the Kagel award has pertinence. Kagel held, and this Ar- bitrator concurs, that the employers had the right to im- plement the more favorable terms of the Autohaus Brug- ger contract. Kagel held, and this Arbitrator concurs, that the employers could only do so prospectively. (These issues are discussed below.) However, Kagel was not called upon to decide the measure of damages in the situation at hand, where the Employer implemented terms more favorable than those in its own contract, but generally still less favorable than those of the Autohaus Brugger agreement. Since the Employer had the right on September 1, 1983 to adopt the Autohaus Brugger terms, it could vio- late the agreement only by implementing terms which didn't at least match Autohaus Brugger. Thus, employees were entitled to be paid at least as much, but not more, than they would have received under Autohaus Brugger. Accordingly, the remedy to which the employees are en- titled is payment of the amount determined by subtract- ing what they were paid from September 1 forward from the amount they would have received under Autohaus Brugger. Obviously, if the latter is greater than the TOYOTA OF SAN FRANCISCO former, they are entitled to nothing. (This should not be read to negate the finding below that the Employer im- properly deducted "overpayments" from employees' wages after learning of the Autohaus Brugger terms; what are referred to here are the amounts actually paid by the Employer following implementation of its final offer on September f until it properly adopted the Auto- haus Brugger terms.) The computation must be based on the Autohaus Brugger compensation structure as a whole. It would be absurd to believe the parties intended that the Employer could "pick and choose" among provisions governing employee compensation and fringe benefits pursuant to the "most favored nation" clause and thereby arrive at total compensation (including fringe benefits) less than that required by the more favorable contract . Thus, for example, the Employer could not adopt the Autohaus Brugger commission structure without also adopting its minimum commission provisions . Similarly, there is no basis in Autohaus Brugger for eliminating the Sunday premium payable under the Employer's contract, since the former prohibits Sunday openings . In like manner, the employer's liability for penalties must be gauged by the Autohaus Brugger contract. Determination of the specific amounts due under the Award is remanded to the parties; however, the Arbitrator retains jurisdiction to make the determination in the event the parties are unable to agree. Issue Two: Union 's Failure To Advise the Employer of the More Favorable Terms of the Autohaus Brugger Contract Arbitrator Kagel found that the Union was not re- quired by the contract to notify the employers of the more favorable terms of the Autohaus Brugger contract, noting that the dealers failed to formally request a copy of it until December 20, 1983, despite their awareness of the negotiations between the Union and Autohaus Brug- ger as early as 1980 . This Arbitrator concurs with both the result and the reasoning of the Kagel decision. Issue Three: Employer's Entitlement to Damages for its Payment of Wages and Fringe Benefits Higher Than Those Required by the Autohaus Brugger Contract This question was also squarely before Arbitrator Kagel, who decided that the employers were not entitled to damages from the Union. This Arbitrator concurs, for reasons essentially the same as those discussed above. Upon learning of the negotiations with Autohaus Brug- ger, the Employer was clearly on notice of the possibili- ty that more favorable terms would be agreed upon. De- spite this knowledge, the Employer failed to formally re- quest a copy of the Autohaus Brugger contract. It had a right to implement more favorable terms at any time, but it also had a right and reason not to do so, as recognized in correspondence from the Employer's representative to members of the Dealers' Auto Sales Association after he had knowledge of the more favorable terms : "many of you would probably elect to pay your salespersons above the contract requirements . . . . (Employer Exhib- it 14) an entitlement to damages does not arise from a failure to take advantage of a right. 815 Issue Four: Incorporation of the Autohaus Brugger No- Strike Clause and the January-February 1984 Strike This Arbitrator also concurs with Arbitrator Kagel that because the no-strike clauses in the Autohaus Brug- ger agreement and the Employer's contract are the same, the Autohaus Brugger provision is not within the ambit of the "most favored nation" clause . The strike in Janu- ary-February 1984 was preceded by the contractually- mandated notice and did not violate the agreement. Issue Five: Timeliness of the Employer 's Grievance The Employer's grievance concerning the Union 's fail- ure to advise it of the more favorable Autohaus Brugger terms, its failure to implement those terms and associated issues is based upon alleged violations of a continuing nature and is therefore timely . The grievance regarding the strike of January-February 1984 was filed within the contractual time limits, and therefore presents no timeli- ness issue. Issue Six: Employer's Implementation of the Autohaus Brugger Terms As Arbitrator Kagel found, the Employer was entitled to implement the more favorable terms of the Autohaus Brugger upon learning of them . It is undisputed that the Employer did not have actual knowledge of those terms until December 20, 1983 , and that the Union never ad- vised it of them . The fact that it could have obtained knowledge of them does not establish a waiver. Since Section 21 of the contract refers to "any more favorable terms," the Employer was not required to adopt the non-economic "just cause" provision of the contract in order to adopt its economic terms. Issue Seven: Employer's Deduction of Alleged "Overpay- ments" From the Wages of the Employees As already noted, the Employer had the right to im- plement the Autohaus Brugger terms prospectively only. Therefore, it violated the agreement when it deducted the alleged overpayments from the wages of the employ- ees. AWARD 1. The Employer violated the collective bargaining agreement when it unilaterally implemented its "final offer" on September 1, 1983. 2. The Union did not violate the collective bargaining agreement by failing to advise the Employer of the more favorable terms of the Autohaus Brugger contract. 3. The Employer is not entitled to damages from the Union because it paid wages and fringe benefits higher than those required under the Autohaus Brugger con- tract. 4. The no-strike provision of the Autohaus Brugger contract cannot be incorported into the collective bar- gaining agreement under the "most favored nation" clause . The January-February 1984 strike did not violate the agreement. 5. The Employer's grievance concerning Issues 3 and 4 was timely. 6. The Employer did not violate the collective bar- gaining agreement when it implemented, in December 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1983 or January 1984, wage rates and fringe benefits con- sistent with the Autohaus Brugger contract. 7. The Employer violated the collective bargaining agreement by deducting from the employees ' wages the difference between amounts paid from August 20-De- cember 20, 1983, and the rates in effect during that time period under the Autohaus Brugger contract. 8. Determination of the remedy in accordance with the guidelines in the Opinion is remanded to the parties. The Arbitrator retains jurisdiction to make that determi- nation in the event the parties are unable to agree. 9. The Arbitrator also retains jurisdiction to resolve any other disputes which may arise between the parties concerning implementation of this Award. APPENDIX C NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT threaten employees with loss of pay if they choose to engage in a lawful strike. WE WILL NOT solicit employees to resign from their Union. WE WILL NOT deny striking employees commissions that they had earned, at least in part, for vehicle sales on orders finalized prior to the strike, but where the vehi- cles were delivered during the strike. WE WILL NOT directly bargain with our employees over wages, hours, and terms and conditions of employ- ment thereby undermining both the Union's bargaining position and its status as their statutory collective-bar- gaining representative. WE WILL NOT engage in bad-faith bargaining tactics that deprive the Union of the fair opportunity to digest and discuss each proposal. WE WILL NOT withdraw recognition of Local 960, Automobile and Allied Salesmen's Division , International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as the exclusive collective-bar- gaining representative of our sales staff. 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 make strikers whole, plus interest, where we denied them commissions on vehicles sold before the strike, but which were delivered to the customers during the strike. WE WILL immediately resume recognition of and on request will bargain in good faith with Local 960, Auto- mobile and Allied Salesmen's Division , International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America in the following bargaining unit and embody in writing and sign any agreement or under- standing that may be reached: All new and used car salesmen employed by Auto- center Mazda and Toyota of San Francisco at their San Francisco Autocenter location excluding all other employees, guards and supervisors as defined in the Act. AUTOCENTER MAZDA TOYOTA OF SAN FRANCISCO APPENDIX E NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT deny striking employees commissions that they had earned, at least in part, for vehicle sales on orders finalized prior to the strike, but where the vehi- cles were delivered to the customers during the strike. WE WILL NOT engage in bad-faith bargaining tactics that deprive the Union of the fair opportunity to digest and discuss each proposal. 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 make strikers whole, plus interest, where we denied them commissions on vehicles sold before the strike, but which were delivered to the customers during the strike. WE WILL, on request, bargain in good faith with Local 960 Automobile and Allied Salesmen's Divison , Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America in the following bar- gaining unit and embody in writing and sign any agree- ment or understanding that may be reached: TOYOTA OF SAN FRANCISCO 817 All new and used car salespersons employed by Eu- ropean Motors, Ltd. at its San Franisco, California location, including all other employees, guards and supervisors as defined in the Act. EUROPEAN MOTORS, LTD. APPENDIX F NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT maintain any fringe benefits plans that contain terms barring participation therein by employees who are represented by a labor union. WE WILL NOT engage in bad-faith bargaining tactics that deprive the Union of the fair opportunity to digest and discuss each proposal. 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, on request, bargain in good faith with Local 960 Automobile and Allied Salesmen's Division, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America in the following bar- gaining unit and embody in writing and sign any agree- ment or understanding that may be reached: All new and used car salespersons employed by British Motor Care Distributors, Ltd. at its San Francisco, California location, excluding all other employees, guards and supervisors as defined in the Act. BRITISH MOTOR CAR DISTRIBUTORS, LTD.