Napleton 1050, Inc. d/b/a Napleton Cadillac of Libertyville

National Labor Relations Board - Board Decisions

Apr 14, 2020

369 N.L.R.B. 56 (N.L.R.B. 2020)

369 NLRB No. 56
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Napleton 1050, Inc. d/b/a Napleton Cadillac of Liber-
tyville and International Association of Machin-
ists and Aerospace Workers, Automobile Me-
chanics Local 701, AFL–CIO. Cases 13–CA–
209951, 13–CA–220180, and 13–CA–222994
April 14, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On June 24, 2019, Administrative Law Judge Geoffrey
Carter issued the attached decision. The Respondent filed
exceptions and a supporting brief, the General Counsel
filed an answering brief, and the Respondent filed a reply
brief.
The National Labor Relations Board has considered the
decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions and to adopt the judge’s recom-
mended Order as modified.2
ORDER
The National Labor Relations Board adopts the recom-
mended Order of the administrative law judge as modified
below and orders that the Respondent, Napleton 1050,
Inc., d/b/a Napleton Cadillac of Libertyville, Libertyville,
Illinois, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Substitute the following for the first paragraph 1(b)
and reletter the subsequent paragraph (also marked, inad-
vertently, as 1(b)) accordingly.
“(b) Discouraging membership in International Asso-
ciation of Machinists and Aerospace Workers, Automo-
bile Mechanics Local 701, AFL–CIO, or any other labor
1 The Respondent has implicitly excepted to some of the judge’s cred-
ibility findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance 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 reversing the findings.
The Respondent excepts to the judge’s finding that it violated Sec.
8(a)(3) and (1) of the Act by failing and refusing to place any economic
strikers on a preferential hiring list and reinstate them before any other
employees were hired or on the departure of their prestrike conversion
replacements. The Respondent, however, does not state, either in its ex-
ceptions or supporting brief, any grounds on which this purportedly er-
roneous finding should be overturned.  Therefore, in accordance with
Sec. 102.46(a)(1)(ii) of the Board's Rules and Regulations, we shall dis-
regard this exception. See Holsum de Puerto Rico, Inc., 344 NLRB 694,
694 fn. 1 (2005), enfd. 456 F.3d 265 (1st Cir. 2006).
organization, by failing and refusing to reinstate unfair la-
bor practice strikers who were not permanently replaced
prior to the strike’s conversion from an economic strike
upon their unconditional offer to return to work.
“(c) Failing and refusing to reinstate striking employees
to their former or substantially equivalent positions of em-
ployment in the absence of a legitimate and substantial
business justification.”
2. Substitute the following for paragraph 2(i).
“(i) Within 14 days after service by the Region, post at
its Libertyville, Illinois facility copies of the attached no-
tice marked “Appendix.”3 Copies of the notice, on forms
provided by the Regional Director for Region 13, after be-
ing signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places, including all
places where notices to employees are customarily posted.
In addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, and/or other elec-
tronic means, if the Respondent customarily communi-
cates with its employees by such means. Reasonable steps
shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material.
If the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em-
ployed by the Respondent at any time since November 15,
2017.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
Dated, Washington, D.C. April 14, 2020
John F. Ring, Chairman
In adopting the judge’s conclusion that the Respondent violated Sec.
8(a)(5) and (1) of the Act by refusing to execute a collective-bargaining
agreement, we agree with the judge’s credibility-based finding that the
parties never agreed to make resolution of their dispute regarding the
striking employees’ return to work a condition precedent to execution of
their September 29, 2017 collective-bargaining agreement. Although the
Union’s reference to the failure to reinstate all of the strikers as a
“dealbreaker” created ambiguity concerning the parties’ agreement, the
Respondent could not rely on that ambiguity alone as grounds for refus-
ing to execute the agreement. See C&W Lektra Bat Co., 209 NLRB 1038,
1039 (1974) (finding parties did not agree to make ratification a condi-
tion precedent to a collective-bargaining agreement where there “is no
evidence that the parties agreed in express words to such a condition”),
enfd. 513 F.2d 200 (6th Cir. 1975).
2 We shall modify the judge’s recommended Order and substitute a
new notice to conform to the judge’s findings and to the Board’s standard
remedial language.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
_
Marvin E. Kaplan, Member
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT fail and refuse to execute a collective-bar-
gaining agreement that reflects the agreement that we and
the Union reached on September 29, 2017, regarding the
terms and conditions of an initial collective-bargaining
agreement
WE WILL NOT discourage membership in International
Association of Machinists and Aerospace Workers, Auto-
mobile Mechanics Local 701, AFL–CIO, or any other la-
bor organization, by failing and refusing to reinstate un-
fair labor practice strikers who were not permanently re-
placed prior to the strike’s conversion from an economic
strike upon their unconditional offer to return to work.
WE WILL NOT fail or refuse to reinstate striking employ-
ees to their former or substantially equivalent positions of
employment in the absence of a legitimate and substantial
business justification.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your rights
listed above.
WE WILL, on request of the Union, execute the collec-
tive-bargaining agreement that the Union submitted to us
for signature on or about November 1, 2017, and give
retroactive effect to the terms of that agreement to Sep-
tember 29, 2017.
WE WILL make bargaining unit employees whole for
any losses they have suffered as a result of our failure to
sign and effectuate the agreement, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, offer those former unfair labor practice strikers
whom we have not yet reinstated since their March 22,
2018 unconditional offer to return to work full and imme-
diate reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges
previously enjoyed, and WE WILL discharge, if necessary,
any replacements hired on or after November 15, 2017.
WE WILL make whole all unfair labor practice strikers
who were not permanently replaced before November 15,
2017, to whom we failed to offer reinstatement upon their
March 22, 2018 unconditional offer to return to work, for
any loss of earnings they may have suffered, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, offer immediate recall to all former economic strik-
ers whom we did not recall after their March 22, 2018 un-
conditional offer to return to work to fill a vacant position
to which they were entitled based on the preferential hir-
ing list. For any such employees, WE WILL immediately
recall them to the position they occupied at the time they
went on strike, or to a substantially equivalent position,
with full seniority and all other rights and privileges.
WE WILL make whole all economic strikers who unlaw-
fully were not recalled in a timely fashion after their
March 22, 2018 unconditional offer to return to work for
any loss of earnings they may have suffered, plus interest.
WE WILL compensate affected employees for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards, and WE WILL file with the Regional Di-
rector for Region 13, within 21 days of the date the amount
of backpay is fixed, either by agreement or Board order, a
report allocating the backpay awards to the appropriate
calendar years for each employee.
NAPLETON 1050, INC. D/B/A NAPLETON
CADILLAC OF LIBERTYVILLE
The Board’s decision can be found at
https://www.nlrb.gov/case/13-CA-209951 or by using the
QR code below. Alternatively, you can obtain a copy of
the decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
NAPLETON 1050, INC. D/B/A NAPLETON CADILLAC OF LIBERTYVILLE 3
Emily O’Neill and Catherine Schlabowske, Esqs.,
for the General Counsel.
Michael P. MacHarg and Tae Y. Kim, Esqs.,
for the Respondent.
Brandon M. Anderson, Esq., for the Charging Party.
DECISION
GEOFFREY CARTER, Administrative Law Judge. In this case,
the General Counsel asserts that Napleton 1050, Inc., d/b/a
Napleton Cadillac of Libertyville (Respondent) violated the Na-
tional Labor Relations Act (the Act) by, in November 2017, re-
fusing to execute an initial collective-bargaining agreement that
it negotiated with the International Association of Machinists
and Aerospace Workers, Automobile Mechanics Local 701,
AFL–CIO (the Union). The General Counsel also asserts that in
March 2018, Respondent unlawfully failed to reinstate bargain-
ing unit members who had been engaging in an unfair labor prac-
tice strike, but then made an unconditional offer to return to
work. As explained below, I find that Respondent violated Sec-
tion 8(a)(5) and (1) of the Act when it refused to execute the col-
lective-bargaining agreement, and violated Section 8(a)(3) and
(1) of the Act by not reinstating and/or recalling striking employ-
ees after their March 22, 2018 unconditional offer to return to
work.
STATEMENT OF THE CASE
This case was tried in Chicago, Illinois, on April 10–11, 2019.
The Union filed the charges at issue here on the following dates:
Case Charge Filing Date
13–CA–209951 November 15, 2017
13–CA–220180 May 14, 2018
13–CA–222994 June 29, 2018
On October 31, 2018, the General Counsel issued a consoli-
dated complaint covering all three cases listed above. The Gen-
eral Counsel subsequently amended the consolidated complaint
on March 19 and 21, 2019.
In the consolidated complaint (as amended), the General
Counsel alleged that Respondent violated Section 8(a)(5) and (1)
of the Act by: since about November 15, 2017, failing and refus-
ing to execute in writing a complete agreement that reflected the
September 29, 2017 agreement that the parties reached on the
terms and conditions of employment for an initial collective-bar-
gaining agreement. The General Counsel also alleged that
1 Although I have included several citations in this decision to high-
light particular testimony or exhibits in the evidentiary record, I empha-
size that my findings and conclusions are not based solely on those
Respondent violated Section 8(a)(3) and (1) of the Act by: since
about March 26, 2018, failing and refusing to reinstate (or offer
to reinstate) nine employees who made unconditional offers to
return to work after engaging in a strike that was prolonged by
unfair labor practices (specifically, Respondent’s refusal to exe-
cute the written agreement noted above). Respondent filed a
timely answer denying the alleged violations in the consolidated
complaint.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed by
the General Counsel and Respondent, I make the following
FINDINGS OF FACT1
I. JURISDICTION
Respondent, a corporation with an office and place of business
in Libertyville, Illinois, engages in the business of selling and
servicing new and preowned automobiles. In calendar year
2017, Respondent derived gross revenues in excess of $500,000,
and purchased and received goods and materials at its Liber-
tyville, Illinois facility that were valued in excess of $5000 and
came directly from points outside the State of Illinois. Respond-
ent admits, and I find based on the evidentiary record, that Re-
spondent is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act. Respondent also ad-
mits, and I find based on the evidentiary record, that the Union
is a labor organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
“On June 20, 2016, the Napleton Auto Group purchased the
assets of Weil Cadillac, a car dealership, and began operating the
dealership as Napleton Cadillac of Libertyville [Respondent]. In
early August 2016, [Respondent’s] service technicians initiated
an organizing campaign with [the Union]. . . . On October 18,
2016, the Union won a Board-conducted representation elec-
tion.” Napleton 1050, Inc., d/b/a Napleton Cadillac of Liber-
tyville (Napleton I), 367 NLRB No. 6, slip op. at 1 (2018); see
also Tr. 19, 100, 108–110, 194.
Since October 18, 2016, the Union has been the exclusive col-
lective-bargaining representative of employees in the following
appropriate unit:
Included: All full-time and regular part-time Service Techni-
cians and Body Shop Technicians including journeymen, ap-
prentices, semi-skilled and lube rack technicians who are em-
ployed at [Respondent’s] facility currently located at Napleton
Cadillac of Libertyville, 1050 S. Milwaukee Avenue, Liber-
tyville, IL.
Excluded: All other employees including parts department em-
ployees, service writers, porters, sales employees, managerial
employees, office clerical employees and guards, professional
employees and supervisors as defined in the Act.
specific citations, but rather are based on my review and consideration
of the entire record for this case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
(GC Exh. 1(i) (par. VI) (noting that on October 31, 2016, the
Union was certified as the exclusive collective-bargaining repre-
sentative of the bargaining unit); Tr. 20.
B. August 1, 2017—The Bargaining Unit Goes on Strike
In or about late October 2016, Respondent and the Union be-
gan negotiating over the terms of an initial collective-bargaining
agreement. By late July 2017, however, negotiations stalled. To
gain some leverage for the Union in contract negotiations, nine
employees in the bargaining unit decided to go on an economic
strike, starting on August 1, 2017.2 Napleton I, 367 NLRB No.
6, slip op. at 2; see also Tr. 21–24, 45–46, 110–112, 133–138,
142–143. The nine strikers were: Chris Becharas; Goran Bogo-
jevic; John Drucker; Mir Iqbal; Grant Kelley; Jeffrey McEntee;
William Oberg; Mike Schiro; and Joseph Schubkegel. (Tr. 177–
178 (referencing the nine strikers listed in the complaint, GC
Exh. 1(g) (par. 5).)
On the first day of the strike, Respondent distributed a letter
to the employees who were on strike. The letter stated, in perti-
nent part:
We have placed ads for replacement technicians. If and when
you are replaced, you will be notified.3 After you are replaced,
should you make an unconditional offer to return to work you
will be placed on a preferential hire list should an opening oc-
cur.
Napleton I, 367 NLRB No. 6, slip op. at 2.4
C. August 3, 2017—The Toolbox Incident
On or about August 1 or 2, 2017, Respondent, through its at-
torney and chief negotiator James Hendricks, informed the Un-
ion that striking employees would need to remove their
toolboxes from the facility. Since the toolboxes are quite large
(up to 15 feet long, 6–7 feet high, and potentially weighing thou-
sands of pounds), the Union and Respondent agreed that employ-
ees could have until the end of August 4 to remove their
toolboxes. Napleton I, 367 NLRB No. 6, slip op. at 2 & fn. 7;
2 By design, the strike at Respondent’s facility coincided with a
“citywide strike against 129 Chicago-area car dealerships belonging to
the New Car Dealer Committee (NCDC), a multiemployer bargaining
association.” Napleton I, 367 NLRB No. 6, slip op. at 2. Respondent
was not a part of the NCDC and its negotiations with the Union for a
standard automotive agreement covering 129 dealerships. Instead, Re-
spondent was negotiating with the Union for a standalone collective-bar-
gaining agreement. (Id.; Tr. 20–21, 23, 139, 158–159, 209, 211–212.)
3 James Hendricks, Respondent’s attorney and chief negotiator in the
relevant time period, testified that Respondent subsequently sent letters
to striking employees to notify them that they were permanently re-
placed. (See Tr. 215, 232–233.) Hendricks did not offer any specific
information about the timing or content of any such letters, and the par-
ties did not enter any permanent replacement letters into the evidentiary
record. Since this evidentiary “gap” is not material to my analysis, I take
no position on the credibility or weight of Hendricks’ testimony on this
issue.
4 The Board held that Respondent did not make an unlawful implied
threat of job loss by informing employees in the August 1 letter that they
would be placed on a preferential hire list if Respondent hired replace-
ment workers. Napleton I, 367 NLRB No. 6, slip op. at 3.
5 The Board held that Respondent violated Sec. 8(a)(1) of the Act by
ordering its employees to remove their toolboxes and subsequently
see also Tr. 93–94, 211.
Notwithstanding the prior agreement about when employees
needed to remove their toolboxes, on August 3, 2017, Hendricks
advised the Union that employees needed to remove their
toolboxes immediately. That same morning, Respondent rolled
employee toolboxes off its property and onto a service access
driveway, where two of the toolboxes (belonging to striking em-
ployees Joseph Schubkegel and William Oberg) sustained rain
damage.5 Napleton I, 367 NLRB No. 6, slip op. at 2–3; Tr. 29,
46, 150.
D. September 29, 2017—The Parties Return to the
Bargaining Table
On September 29, the Union and Respondent returned to the
bargaining table.6 Initially, Respondent (through Hendricks)
asked about resolving various pending unfair labor practice
charges. The Union (through directing Business Representative
Sam Cicinelli), however, asserted that it was focused on negoti-
ating the terms of a collective-bargaining agreement, and was not
at liberty to negotiate about the unfair labor practice charges.
Accordingly, the parties focused their attention on hammering
out the terms of a collective-bargaining agreement. (Tr. 18, 25–
30, 144.)
Regarding the collective-bargaining agreement, the parties
identified the following items that were still in dispute: (a) the
steps that would be required before an employee could be termi-
nated for disciplinary reasons; (b) the pension/retirement plan;
(c) health insurance deductibles and copays; (d) whether em-
ployee layoffs would be made based on productivity or seniority;
(e) wage rates; (f) a union-security provision; and (g) the length
of the agreement. The Union and Respondent bargained to
agreement on each of those issues, with the parties agreeing to:
a three-step process before disciplinary terminations; a 401(k)
defined contribution plan instead of a pension plan (with Re-
spondent contributing $70/week per employee); a healthcare
plan with a $10/week copay; layoffs to be made based on senior-
ity; a one-dollar per hour wage increase; a union security
removing employees’ toolboxes from the dealership because they en-
gaged in protected strike activity. Napleton I, 367 NLRB No. 6, slip op.
at 3; Tr. 29, 46, 150. However, in the consolidated complaint in this case,
the General Counsel did not allege that the strike was converted to an
unfair labor practice strike based on the August 3 toolbox incident. (See
GC Exh. 1(e) (pars. 5, 7); see also GC Posttrial Br. at 9 fn. 4, 15 fn. 9,
21–25 (noting that the Region disagreed with the Union’s theory that the
strike converted to an unfair labor practice strike on August 3, 2017, and
arguing that the strike converted to an unfair labor practice strike on No-
vember 15, 2017).) Accordingly, I have not considered the merits of any
arguments that the strike converted to an unfair labor practice strike
based on the toolbox incident.
6 The renewed interest in bargaining arose in part because the
citywide strike involving 129 car dealerships ended on or about Septem-
ber 18, 2017, and the NCDC worked out a standard automotive agree-
ment that covered the bargaining units in those dealerships. The Union
and Respondent used some of the language in the standard automotive
agreement in their negotiations and incorporated similar language into
the collective-bargaining agreement. (Tr. 26, 144–145, 236; see also Tr.
58–62, 159–160 (noting that the parties involved in the NCDC dispute
negotiated the following separate agreements: a contract; a strike settle-
ment agreement; and a return to work agreement).)
NAPLETON 1050, INC. D/B/A NAPLETON CADILLAC OF LIBERTYVILLE 5
provision; and a 5-year term for the collective-bargaining agree-
ment. (Tr. 27, 30–34, 73–75, 145–147, 214, 229, 240.)
Although the parties agreed on all issues concerning the col-
lective-bargaining agreement, some “housekeeping” remained to
put together a final written agreement. Specifically, the Union
needed to prepare a wage scale that reflected the parties’ agree-
ment and would format properly into the document and needed
to obtain contract language from its attorney about holding Re-
spondent’s contributions to the 401(k) plan in escrow for a 6-
month waiting period. The Union promised to make those
changes and send a final written agreement to Respondent for
review. Respondent agreed, noting that the contract language for
the 401(k) plan would not hold up finalizing an agreement. (Tr.
34–35, 75–76, 147, 164, 167.)
At the end of the meeting, Hendricks again asked the Union
what the parties should do about the pending unfair labor prac-
tice charges. Cicinelli responded that he did not have all of the
details about the charges, and noted that in any event, the Union
was not going to “buy” a collective-bargaining agreement by
waiving backpay or other relief that might be owed based on un-
fair labor practices. Cicinelli added that the parties already had
an agreement about the terms of a collective-bargaining agree-
ment and asserted that any unfair labor practice charges would
simply run their course. (Tr. 35–36, 150–151.)
Next, Hendricks asked about the “800–pound gorilla in the
room,” meaning the status of the replacement workers and the
employees on strike. Cicinelli responded that the Union’s posi-
tion was that the striking employees would return to work, and
asserted that if Respondent thought otherwise, the Union would
take its chances with filing and litigating an unfair labor practice
charge with the Board because not getting all strikers back to
work would be a deal breaker (as to the parties’ chances of work-
ing out a strike settlement agreement). Cicinelli then reiterated
that he would send a final written collective-bargaining agree-
ment to Hendricks for review. Hendricks said, “great, sounds
good,” and then the parties shook hands and ended the meeting.
(Tr. 36–37, 72, 78–79, 147–149, 164, 216–217; see also Tr. 39,
160 (noting that the parties never agreed to condition executing
the collective-bargaining agreement on resolving the striking
employees’ return to work and/or on resolving the pending unfair
labor practice charges); Tr. 213 (noting that Hendricks had final
authority to approve the collective-bargaining agreement on Re-
spondent’s behalf, though he kept Respondent’s owner informed
of what he was negotiating); GC Exh. 9 (p. 3) (Respondent’s po-
sition statement, stating that “[t]he parties reached agreement on
all provisions of the collective bargaining agreement, but not on
the strikers and/or replacements”).)
E. November 2017—Further Communications about the Terms
of the Collective-Bargaining Agreement and the Strike
On November 1, 2017, Cicinelli emailed Hendricks a written
collective-bargaining agreement that reflected the agreement
7 Both Hendricks and Cicinelli testified that the term “dealbreaker”
referred to their disagreement about resolving the strike, and specifically
whether: (a) the striking employees would return to their jobs and dis-
place any replacement workers (the Union’s position); or (b) the replace-
ment workers would keep their jobs and the striking employees would
be placed on a preferential rehiring list (Respondent’s position). Where
that the parties negotiated on September 29 and specified that the
contract would be in effect from September 29, 2017 to July 31,
2022. (GC Exhs. 2(a) (p. 8); 2(b); Tr. 39–40, 152, 230–231,
235–236.) The following email exchange ensued on November
1:
Hendricks: I will try to get to this on Friday. What
about the “deal breaker”7 and ULP’s?
Cicinelli: We obviously need to talk more about the re-
turn to work and strike issues (assuming that’s what you
mean by “dealbreaker”) and we’re obviously open to dis-
cussing the resolution of the ULPs but need to know
whether we’re at least in agreement on the contract terms as
reached on the 29th. If we still need to meet to negotiate
over the agreement terms, then let’s get them addressed and
keep this process moving.
(GC Exh. 2(a) (p. 7); see also Tr. 80–81, 84.)
On November 7 and 8, Cicinelli emailed and telephoned Hen-
dricks to confirm that the written agreement included all of the
changes that the parties agreed to on September 29. The follow-
ing email exchange addressed that question:
Hendricks:[November 10] Sorry for the delay, [S]am.
The [CBA] draft looks good, except [Respondent’s owner]
will not agree to any pension plan. Probably ought to have
a chat on when and how many return to work.
Cicinelli: [November 10] There is no pension plan in
the draft. There’s a 401(k) plan (Article 12) with a
$70/week employer contribution instead[.]
Cicinelli: [November 13] With that being said, are you
good with the draft agreement?
Hendricks:[November 13] Good to go on Napleton,
Sam.
(GC Exh. 2(a) (pp. 3–7); Tr. 213, 218–219, 231 (Hendricks tes-
timony that the written collective-bargaining agreement re-
flected all language that the parties agreed to, and that he had the
authority to approve the contract); see also Tr. 40–41, 82, 84–85;
GC Exh. 9 (p. 3) (Respondent’s January 9, 2018, position state-
ment, stating that “[t]he parties reached agreement on all provi-
sions of the collective bargaining agreement, but not on the strik-
ers and/or replacements”).)
F. November 13–15, 2017—The Parties’ Actions after Agree-
ing on the Terms of the Collective-Bargaining Agreement
Within an hour of notifying the Union that everything was
“good to go” with the collective-bargaining agreement, Re-
spondent (on Nov. 13) withdrew its unfair labor practice charge
in Case 13–CB–2016658, in which Respondent had alleged that
the Union had failed and refused to bargain in good faith. (GC
Exhs. 3(a)–(b), 10; see also GC Exh. 2(a) (p. 1) (noting that
Hendricks and Cicinelli differ is on whether the parties could fully nego-
tiate and be required to execute a collective-bargaining agreement with-
out also resolving the status of the striking employees (Hendricks says
“no”; Cicinelli says “yes”). (Tr. 78–79, 98–99, 164, 216–218.) That
issue is presented to me to decide in this case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
Respondent withdrew its unfair labor practices charge against
the Union); Tr. 47–49, 51–52.)
In the morning on November 14, the bargaining unit voted to
ratify the collective-bargaining agreement. The bargaining unit
then took down the strike line (i.e., ended strike activities) and
the Union transported all strike signs to the union hall for stor-
age.8 (Tr. 24–25, 42, 52, 80, 112–114, 130–131, 143, 153–156.)
In the early evening on November 14, Cicinelli emailed Hen-
dricks to state as follows concerning the strike and the collective-
bargaining agreement:
The members at Napleton Cadillac of Libertyville voted today
to ratify the contract that was reached between the parties on
September 29th. As a result, the strike has had the desired ef-
fect, the strike is now concluded, and each of the striking em-
ployees is making an unconditional offer to return to work.
While the strike started as an economic strike, it was immedi-
ately converted to [an] Unfair Labor Practice strike when [Re-
spondent] issued permanent replacement letters that illegally
threatened those participating in the strike with loss of employ-
ment and when [Respondent] unlawfully removed the employ-
ees’ tool boxes from the work area (and damaging them in the
process). These actions prolonged what otherwise would have
been a short strike. As a result, [Respondent] is obligated to
return all of the employees who participated in the strike and
displace the “replacement workers.” The employees are ready
and willing to return to work immediately. Please let me know
when is an agreeable time tomorrow for the guys to return their
tool boxes and what time they should report to work on Thurs-
day.
(GC Exh. 2(a) (p. 3); see also Tr. 42, 45–46.)
On November 15, Hendricks emailed Cicinelli to dispute
whether the parties had an agreement and whether the strike was
an unfair labor practice strike. Hendricks stated as follows:
It appears that you have a serious misunderstanding regarding
the situation involving a potential CBA [with Respondent].
Simply stated, based on your email, there is no agreement. . . .
I will not be manipulated and abused by your less than ethical
tactics. We have dealt with one another for a long time, and up
until now, I always took your word to have value.
Any CBA had a resolution on the striker issue as inextricably
intertwined into the fabric of the agreement. I sent you numer-
ous messages to that effect.9 Now, you attempt to ramrod an
agreement down our throats—and claim some unique theory
of striker rights in an effort to end run your bargaining obliga-
tion. Unfortunately, you are simply mistaken. If you wanted
to let the unfair labor practices run their course, you should
have just said so—obviously my client is not in the business of
negotiating against itself. It is beyond credulity that we would
compromise on all of the issues leading to a CBA—and let you
simply have your way on the remaining issues. We withdrew
our ULP against the union on the strength of your word. I will
reinstate that later.
8 During the strike, individual bargaining unit members would take
the strike materials home for the night and bring the materials back the
next morning. (Tr. 114–115, 154.)
Simply put, the understanding on the CBA was that your strik-
ers go on a preferential re-hire list. Period. There is no more
to it than that. [Respondent] was not—and is not—part of the
CATA NCDC and candidly, no strike should have been effec-
tuated here in the first place. Nonetheless, the employees took
action that is within their lawful providence. The employer re-
sponded within its lawful rights and permanently replaced the
strikers. You, of all people, should know this happens.
This was AT ALL TIMES an economic strike. Any thought to
the contrary is absurd. As a consequence, there is no CBA and
you can take whatever steps you believe are necessary to rep-
resent your unit members. At this time, the offers to return to
work are rejected, as they are not unconditional.
(GC Exh. 2(a) (p. 1).)
Citing Respondent’s refusal to execute the collective-bargain-
ing agreement, on or about November 20, bargaining unit mem-
bers resumed their strike at Respondent’s facility. Bargaining
unit members also began carrying signs stating “Unfair Labor
Practice Strike” while on the strike line and posted similar signs
in the area of the strike line. (Tr. 52–54, 115–120, 125, 136,
155–156; GC Exh. 7; see also Tr. 125–126, 139–140 (noting that
between August 3 and November 14, 2017, bargaining unit
members handwrote “ULP” in the corner of the signs they car-
ried while on the strike line).)
G. February 2018—The Acting Regional Director Dismisses
the Union’s Unfair Labor Practices Charge against Respond-
ent in Case 13–CA–209951
On November 15, 2017, the Union filed an unfair labor prac-
tices charge against Respondent in Case 13–CA–209951. In that
charge, the Union asserted that Respondent violated the Act by
refusing to reinstate striking employees after an unconditional
offer to work, and by failing and refusing to bargain in good faith
with the Union. (GC Exh. 1(a).)
On February 23, 2018, the Acting Regional Director notified
the parties of her decision to dismiss the Union’s unfair labor
practices charge in Case 13–CA–209951. The Acting Regional
Director stated as follows to explain the decision:
Decision to Dismiss: You have alleged that [Respondent] re-
fused to reinstate employees after an unconditional offer to re-
turn to work in violation of Section 8(a)(1) & (3) of the Act.
However, the evidence is insufficient to show that [Respond-
ent] had an obligation to reinstate employees at that time be-
cause the employees had been permanently replaced during the
course of an economic strike. You have also alleged that [Re-
spondent] has failed to execute a collective-bargaining agree-
ment in violation of Section 8(a)(1) and (5) of the Act. How-
ever, the evidence is insufficient to show that the parties had
come to a meeting of the minds on all issues during negotia-
tions. Therefore, [Respondent] did not unlawfully fail to exe-
cute a contract.
(R. Exh. 1.) On March 9, 2018, the Union appealed the Acting
Regional Director’s decision to dismiss the charge in Case 13–
9 The evidentiary record does not include any messages between the
parties on this issue (beyond what is described in these Findings of Fact).
(Tr. 222–223.)
NAPLETON 1050, INC. D/B/A NAPLETON CADILLAC OF LIBERTYVILLE 7
CA–209951. (See R. Exh. 2.)
H. March 2018—Bargaining Unit Members Make Another Of-
fer to Return to Work
At 2:26 pm on March 22, 2018, Cicinelli emailed Hendricks
to advise (among other things) that the striking employees were
making an unconditional offer to return to work. Cicinelli stated
as follows:
While the Union is anticipating both a favorable decision on
behalf of the Union with regards to the Libertyville Cadillac
hearing as well as our appeal of the dismissal of the last charge
filed in this case, I’d nonetheless like to formally request a
meeting at your earliest convenience to discuss the return to
work of the strikers. We have now been in agreement on the
contract terms for several months. Since we do have a contract,
each of the striking employees is renewing their unconditional
offer to return to work and based on this understanding the Un-
ion is making preparations to take the strike line down. Settling
the ULP(s) is really no longer an issue (although the Union re-
mains willing to settle these [matters], but there’s no need to
hold up the resolution of the contract/strike on this issue). So
that leaves only the return to work of the strikers. I am still
willing to resolve this issue along the terms we discussed. But
if we can’t get that done and agree on the other details relating
to a return to work now, let’s get a date on the books in order
to keep this moving. Let me know your availability.
(GC Exh. 4 (p. 1); see also Tr. 54–56, 85, 143, 156.) Hendricks
(and Respondent’s other attorney, Michael MacHarg, who was
copied) received Cicinelli’s March 22, 2018 email on the date
and time that it was sent—no evidence was presented at trial to
suggest otherwise.10
On March 26, 2018, Hendricks responded to Cicinelli’s
March 22, 2018 email by stating as follows:
Of course, you know we are always ready and willing to nego-
tiate. The outcome of the trial is immaterial, it involves back-
pay for some individuals and a possible fraud investigation
against one individual who is clearly attempting to swindle
[Respondent]. You state “we do have a contract.” Please re-
read the [Board’s] dismissal of your ULP wherein the Board
explicitly found no “meeting of the minds.” I do not know why
you think we do not have to come to some actual agreement on
the strikers, because that is central to a complete agreement.
The return to work of the strikers remains simple: they are on a
preferential re-hire list. I believe their automatic right to rein-
statement is gone at the one year anniversary, but I will have to
double check that. Nonetheless, they will remain on a re-hire
list for the time being. [Beyond] that, we have every intention
of honoring the terms that have been previously agreed.
(GC Exh. 4 (p. 2); see also Tr. 55, 85.)
I. April/May 2018—Additional Negotiations between
10 My finding on this point is not undermined by the fact that Hen-
dricks, as indicated in this section, did not respond to Cicinelli’s March
22 email until March 26. The evidentiary record shows that Hendricks
was not always prompt in responding to the Union’s emails. See, e.g.,
the Parties
On or about April 4, 2018, the Union took down the strike line.
(Tr. 24, 57, 112, 120, 156–157.) The parties then met for bar-
gaining sessions on April 5 and 18. Emboldened by the dismis-
sal of the Union’s unfair labor practice charge in Case 13–CA–
209951, Respondent took the position that the parties did not
have an agreement on a contract, and sought to reopen discus-
sions on the length of the collective-bargaining agreement, and
on whether the agreement should include a union security clause.
The Union opposed both of those proposed changes and warned
that it would file additional unfair labor practice charges unless
Respondent dropped those demands. The Union also felt that its
position was strengthened by an April 4, 2018 Administrative
Law Judge decision that found Respondent violated the Act by
(among other things): discharging/laying off two members of the
bargaining unit shortly after the October 2016 election; and re-
moving striking employees’ toolboxes on August 3, 2017. The
parties did explore various proposals for bringing the striking
employees back to work, but ultimately could not agree on that
issue. (Tr. 85–91, 95–96, 99–101, 103, 157, 240–241; see also
R. Exh. 3 (pp. 1–2.); Napleton I, 2018 WL 1634880 (April 4,
2018) (Goldman, J.), affirmed in part and reversed in part, 367
NLRB No. 6 (2018).
In late April 2018, the Union (through Cicinelli) and Respond-
ent (through attorney Michael MacHarg, on behalf of Hendricks)
exchanged the following emails that summarized the parties’
perspectives about the dispute:
Cicinelli: [April 23] While we wait for things to play
out with [the two employees who were unlawfully laid
off/discharged], we do want to get the contract wrapped up.
Our position[] is the same as in November—we have a con-
tract. Your March 26 email confirms that we have an agree-
ment on the terms of the contract. You then said during
negotiations on April 5, 2018 that you were backing up on
the term and the dues authorization. Last week at the April
18, 2018 session, you said based on what [Respondent’s
owner] told you, that you would agree to a 5 year Agree-
ment. So that leaves the dues authorization item. I would
like to know if you will agree to what you’ve already agreed
to. If the answer is yes, we can focus on the strike/replace-
ment issue. That obviously has a lot of moving parts and
will take time to play out, but at least we’re then done with
the Agreement. If the answer is no, then we’re going to
have to unfortunately file a charge. We made it clear we
don’t think the “changed circumstances” argument is going
to fly. Please let me know.
MacHarg: [April 25] First things first, your position
may be that “we have a contract,” but that is NOT the posi-
tion of my client—and perhaps most significantly, that is
not the view of the NLRB. Accordingly, you need to come
to grips with reality—your heavy handed attempt to force a
contract failed and we [must] bargain to accommodation on
Findings of Fact (FOF), sec. II(E), supra (indicating that in November
2017, Hendricks took a few days to respond to certain telephone and
email communications from Cicinelli).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
every single remaining issue. Then, and only then, will we
have a contract.
Second, you seem to be confused, there is no issue with
respect to dues authorization, but there is an issue with re-
spect to union security. While I appreciate your helpfulness
that changed circumstances “will not fly,” I am inclined to
rely on my own research in order to reach that determina-
tion.
Finally, you state that the issue with respect to the strik-
ers has many moving parts and needs to be resolved. How-
ever, the issue resolved itself. You filed a predictably un-
successful unfair labor practice charge. The strikers were
permanently replaced. They are now on a preferential re-
hire list. I am not sure anything else needs to be done.
Our March 26 correspondence does not acquiesce to your
notion of a contract. I specifically pointed you to the
Board’s dismissal letter finding no “meeting of the
minds.”
The bottom line is that you have reached agreement on
the economics of a five year contract, the strikers re-
main on a list and the contract will not contain union
security. If you are ready to ratify such a contract, we
will execute it.
(R. Exh. 3 (pp. 1–2); see also Tr. 88, 239–240.)
In early May 2018, the parties convened for a conference call
to negotiate further about having the striking employees return
to work.11 During the call, Cicinelli asked Respondent’s owner
Bill Napleton why Respondent would not be interested in having
the striking employees, who were highly experienced, return to
work. Napleton asserted that the strikers engaged in unaccepta-
ble behavior while on the picket line in the form of being rude to
customers and replacement workers but did not identify any spe-
cific examples of misconduct. Cicinelli responded that it was
human nature that the striking employees would not be “buy[ing]
roses” for the workers that replaced them.12 (Tr. 62–65, 67–69,
96.)
Later in May 2018, the Union put the strike line up again be-
cause the striking employees still had not returned to work. At
the time of trial, however, the strike line had been taken down.
(Tr. 57–58, 121, 143, 158; see also Tr. 121 (noting that at least
one of the striking employees did not participate in the May 2018
strike line because he had started working at a new job).)
J. Spring/Summer 2018—Respondent’s Efforts to Hire Em-
ployees in Bargaining Unit Positions
On or about March 23, 2018, Respondent hired employee
11 During trial, Respondent objected to any testimony about the May
2018 conference call under Rule 408 of the Federal Rules of Evidence,
on the theory that the conference call was a settlement conference. I
overruled Respondent’s objection because there was no evidence that the
parties were treating the call as a settlement conference covered by Rule
408, as opposed to another bargaining session about how the parties
might have the striking employees return to work. (Tr. 63–67.) I stand
by that ruling and note that the evidentiary record shows that the parties
habitually discussed a variety of issues in their bargaining sessions, in-
cluding whether they might settle unfair labor practice charges, and
E.R., with E.R. commencing work as a journeyman on March
26, 2018. (Tr. 195–198, 200–203; GC Exh. 12; see also R. Exh.
10 (E.R.’s employment application, dated March 23, 2018).)
On May 17 and 25, 2018, Respondent’s corporate service
manager Tony Renello sent out emails expressing Respondent’s
interest in hiring technicians. The emails noted that Respondent
was “currently looking for certified GM techs” at its facility, and
encouraged the recipients to share the information with any GM
certified technician who might be interested. (GC Exh. 14; see
also GC Exhs. 12–13 (indicating that Respondent hired at least
six employees in bargaining unit positions after March 22, 2018,
and indicating that at least four replacement workers hired in Au-
gust 2017 terminated their employment with Respondent after
March 22, 2018).)
In June and July 2018, Respondent began sending letters to
the striking employees to offer them the opportunity to resume
working for Respondent, albeit at the same rate of pay and ben-
efits that they had when they went on strike (i.e., rates and ben-
efits that were lower than what was set forth in the proposed col-
lective-bargaining agreement). (See GC Exh. 8(a) (example let-
ter sent to William Oberg).) Respondent sent offer letters to the
following striking employees on the following dates:
Striking Employee Name Date of Offer Letter
Grant Kelley June 4, 2018
Mike Schiro June 8, 2018
William Oberg June 18, 2018
Chris Becharas June 30, 2018
Mir Iqbal July 9, 2018
Joseph Schubkegel July 9, 2018
Jeffrey McEntee July 16, 2018
John Drucker July 16, 2018
Goron Bogojevic Specific date not provided13
The striking employees generally advised Respondent to contact
the Union regarding Respondent’s return to work offers. (Tr.
121–125, 166–169, 177–178; GC Exhs. 8(a)–(b); see also Tr.
12–13.)
K. June 28, 2018 – The Regional Director Revokes the Dismis-
sal of the Union’s Unfair Labor Practices Charge in
Case 13–CA–209951
On June 28, 2018, the Regional Director notified the Union of
his decision to revoke the dismissal of the Union’s unfair labor
practices charge in Case 13–CA–209951 (the Union’s appeal of
the dismissal was still pending at the time). The Regional Direc-
tor stated as follows about the decision:
Revocation of Dismissal: After further review, I have recon-
sidered my decision and have now determined that additional
whether they might be able to negotiate agreements to end the strike
and/or have striking employees return to work.
12 Cicinelli noted that the police were called on two occasions during
the strike, and explained that nothing came out of either of those occa-
sions. There is no evidence that Respondent filed any unfair labor prac-
tice charges alleging strike misconduct. (Tr. 68–68, 97.)
13 Although the record does not specify the date when Respondent sent
Bogojevich his return to work letter, the parties stipulated that Respond-
ent sent return to work letters to all nine of the striking employees listed
in the complaint. (Tr. 177–178.)
NAPLETON 1050, INC. D/B/A NAPLETON CADILLAC OF LIBERTYVILLE 9
proceedings on your charge are warranted. In view of my re-
consideration, on behalf of the General Counsel, I am inform-
ing you that your charge is being returned to the Regional Of-
fice for further processing. Since I have determined that further
proceedings are warranted, I am revoking my earlier dismissal
of your charge.
(R. Exh. 2.) The General Counsel subsequently issued the con-
solidated complaint in this case (including complaint allegations
based on Case 13–CA–209951) on October 31, 2018. (GC Exh.
1(g).)
DISCUSSION AND ANALYSIS
A. Credibility Findings
A credibility determination may rely on a variety of factors,
including the context of the witness’ testimony, the witness’ de-
meanor, the weight of the respective evidence, established or ad-
mitted facts, inherent probabilities and reasonable inferences that
may be drawn from the record as a whole. Credibility findings
need not be all-or-nothing propositions—indeed, nothing is more
common in all kinds of judicial decisions than to believe some,
but not all, of a witness’ testimony. Farm Fresh Co., Target
One, LLC, 361 NLRB 848, 860 (2014) (noting that an adminis-
trative law judge may draw an adverse inference from a party’s
failure to call a witness who may reasonably be assumed to be
favorably disposed to a party, and who could reasonably be ex-
pected to corroborate its version of events, particularly when the
witness is the party’s agent).
In this case, credibility is generally not at issue because the
majority of the testimony that witnesses provided was unrebutted
and was corroborated by documentation that was admitted into
evidence. The Findings of Fact accordingly incorporate the tes-
timony of all of the witnesses who testified at trial, to the extent
that their testimony was relevant, based on their personal
knowledge and was corroborated by other evidence (or was un-
rebutted). To the extent that credibility issues did arise, I have
stated my credibility findings in the Findings of Fact above.
B. Do Any Procedural Issues Warrant Dismissing
the Complaint?
In its posttrial brief, Respondent asserted that I should dismiss
the complaint in this case because the complaint allegation that
Respondent unlawfully refused to execute the collective-bar-
gaining agreement is not supported by a timely unfair labor prac-
tice charge as required by Section 10(b) of the Act, and because
the General Counsel should have litigated the complaint allega-
tions at issue here in a single proceeding (i.e., together with the
allegations addressed in Napleton I).14 As explained below, I am
not persuaded by either of those arguments.
14 Respondent also argues in its posttrial brief that this case should be
dismissed because it was improper for the Region to reinstate the charge
in Case 13–CA–209951 on June 28, 2018 (after having dismissed it 4
months earlier). As I noted during trial, however, the Region’s actions
were permissible because the Union appealed the Region’s dismissal de-
cision, and that appeal was still pending when the Region decided to re-
instate the charge. I am bound to follow the Board’s precedent on that
point. See Children’s National Medical Center, 322 NLRB 205, 205
(1996) (explaining that a dismissed charge may be reinstated without
1. The complaint allegations are not time-barred under
Section 10(b)
Under Section 10(b) of the Act, “no complaint shall issue
based upon any unfair labor practice occurring more than six
months prior to the filing of the charge with the Board and the
service of a copy [of the charge] upon the person against whom
such charge is made.” The fundamental policies underlying the
10(b) period are to: bar litigation over past events after records
have been destroyed, witnesses have gone elsewhere, and recol-
lections of the events in question have become dim and con-
fused; and to stabilize existing bargaining relationships. Section
10(b) is an affirmative defense that is waived if it is not timely
raised in the respondent’s answer or during the trial. Public Ser-
vice Co., 312 NLRB 459, 461 (1993); A & L Underground, 302
NLRB 467, 468 (1991) (citing Bryan Manufacturing Co. v.
NLRB, 362 US 411, 419 (1960)).
As a preliminary matter, I note that Respondent did not assert
its 10(b) argument as an affirmative defense in its answer to the
complaint or at any point during the trial.15 Instead, Respondent
waited until its posttrial brief to assert its 10(b) defense. Based
on well-established Board precedent, I find that Respondent
waived its 10(b) defense by failing to raise it in a timely manner.
Public Service Co., 312 NLRB at 461 (rejecting the respondent’s
10(b) defense as clearly untimely where the respondent raised
the defense for the first time in its posttrial brief); see also EF
International Language Schools, 363 NLRB No. 20, slip op. at
1 fn. 2 (2015), enfd. 673 Fed.Appx. 1 (D.C. Cir. 2017); Paul
Mueller Co., 337 NLRB 764, 764–765 (2002).
Even if we turn to the merits of Respondent’s 10(b) defense,
however, the defense still falls short. Respondent predicates its
10(b) defense on the unfair labor practice charge in Case 13–
CA–222994 (filed on June 29, 2018), but I find that that charge
in Case 13–CA–209951 (filed on Nov. 15, 2017) is the one that
is relevant for my analysis. In the charge in Case 13–209951,
the Union asserted that Respondent: violated Section 8(a)(3) of
the Act by refusing to reinstate employees on November 15,
2017, after an unconditional offer to return to work; and violated
Section 8(a)(5) of the Act by failing and refusing to bargain with
the Union in good faith. (GC Exh. 1(a).)
While the charge in Case 13–CA–209951 states the 8(a)(5)
claim in broad terms (i.e., a failure and refusal to bargain), the
record is clear that the Region, Respondent and the Union under-
stood the specific claim to be that Respondent violated the Act
by refusing to execute the collective-bargaining agreement that
the Union asked Respondent to sign in November 2017. Indeed,
Respondent addressed that legal theory in its January 9, 2018 po-
sition statement, and the Region addressed the same legal theory
when it dismissed the charge on February 23, 2018. (See GC
Exh. 9 (pp. 2–3); R. Exh. 1).) Those facts undercut any argument
violating the 10(b) statute of limitations if the reinstatement occurs while
the appeal of the dismissal decision is pending); see also Tr. 13–14, 70–
71, 190–191.)
15 Respondent did object to the reinstatement of the charge in Case
13–CA–209951 after the 10(b) period (see fn. 14, supra), but that limited
argument is distinguishable from a general 10(b) defense that a com-
plaint allegation is not supported by a timely unfair labor practices
charge.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
that the complaint allegation regarding Respondent’s refusal to
execute the collective-bargaining agreement is not supported by
a timely unfair labor practices charge.
Moreover, it is clear (at a minimum) that the “refusal to exe-
cute” complaint allegation is closely related to the unfair labor
practices charge in Case 13–CA–209951. The charge in Case
13–CA–209951 explicitly asserts that Respondent violated the
Act by not reinstating employees after an unconditional offer to
return to work. The legal and factual merits of that claim are
intertwined with the question of whether the strike was an unfair
practice strike based on Respondent’s actions on August 3, 2017
(i.e., the toolbox incident) and/or based on Respondent’s refusal
to execute the collective-bargaining agreement on November 15,
2017. Accordingly, the complaint allegation that Respondent vi-
olated Section 8(a)(5) by refusing to execute the collective-bar-
gaining agreement is closely related to the timely charge in Case
13–CA–209951, and Respondent’s 10(b) defense fails.16 See
Redd-I, Inc., 290 NLRB 1115, 1116 (1988) (explaining to decide
whether complaint allegations are closely related to the allega-
tions in a timely filed charge, the Board evaluates whether the
complaint allegations are factually and legally related to the
charge).
2. The General Counsel was not obligated to litigate the com-
plaint allegations in this case in an earlier proceeding
Next, Respondent contends that, based on the Board’s deci-
sion in Jefferson Chemical Co., 200 NLRB 992 (1972), the Gen-
eral Counsel is precluded from litigating the allegations in the
complaint in this case. Specifically, Respondent argues that a
“litigation bar” should apply because the General Counsel was
aware of the unfair labor practice allegations in this case in 2017,
and should have postponed the January 3–5, 2018 trial in Naple-
ton I and litigated all allegations from that case and this one in a
single proceeding. (R. Posttrial Br. At 8–11; see also Tr. 191)\
In making this argument, Respondent overlooks the fact that
the Board has held that Jefferson Chemical only applies to cases
involving relitigation of the same conduct (e.g., by litigating the
same act or conduct as a violation of different sections of the Act,
or by relitigating the same unfair labor practice charges in differ-
ent cases). Where the new allegations are factually independent
from the allegations that were litigated in the earlier proceeding,
it is permissible for the General Counsel to litigate the new alle-
gations separately, since the separate proceedings will not sacri-
fice fairness and economy. Affinity Medical Center, 364 NLRB
No. 68, slip. op. at 2 (2016).
I find that it was permissible for the General Counsel to liti-
gate the allegations in this case separately from the allegations
addressed in Napleton I. In Napleton I, the parties litigated
whether Respondent violated the Act by:
discharging one employee and laying off a second employee in
October 2016, shortly after the employees’ decision to union-
ize;
failing to bargain over the employee layoff in October 2016
16 Because the “refusal to execute” complaint allegation in this case is
closely related to the timely charge filed in Case 13–CA–209951, the
decision in Precision Concrete v. NLRB, 334 F.3d 88 (D.C. Cir. 2003)
(cited by Respondent, see R. Posttrial Br. at 7–8) is distinguishable. See
failing and refusing to provide information in October 2016 re-
lated to the employee layoff;
unlawfully creating the impression in November 2016, that it
had employee union activities under surveillance; and
unlawfully threatening job loss and ordering the removal of
employee toolboxes shortly after employees went on strike in
August 2017.
Napleton I, 367 NLRB No. 6, slip op. at 13–21. Since the alle-
gations in Napleton I are factually independent from the allega-
tions at issue here (where the General Counsel alleges that Re-
spondent unlawfully refused to execute the collective-bargaining
agreement in November 2017, and unlawfully refused to rein-
state the striking employees after they unconditionally offered to
return to work in March 2018), there is no basis for a litigation
bar based on Jefferson Chemical.
C. Is Respondent Obligated to Execute the Contract?
The General Counsel alleges that Respondent violated Section
8(a)(5) and (1) of the Act by, since about November 15, 2017,
failing and refusing to execute in writing a complete agreement
that it reached with the Union on September 29, 2017, regarding
the terms and conditions of employment for the bargaining unit
that would be incorporated into an initial collective-bargaining
agreement.
It is well settled that the obligation in Section 8(d) of the Act
to bargain collectively requires either party, upon the request of
the other party, to execute a written contract incorporating an
agreement reached during negotiations. However, this obliga-
tion arises only if the parties had a “meeting of the minds” on all
substantive issues and material terms of the agreement. The
General Counsel bears the burden of showing not only that the
parties had the requisite “meeting of the minds,” but also that the
document which the respondent refused to execute accurately re-
flected that agreement. If it is determined that an agreement was
reached, a party’s refusal to execute the agreement is a violation
of the Act. Windward Teachers Assn., 346 NLRB 1148, 1150
(2006).
A “meeting of the minds” in contract law is based on the ob-
jective terms of the contract rather than on the parties’ subjective
understanding of the terms. Thus, subjective understandings (or
misunderstandings) of the meaning of terms that have been
agreed to are irrelevant, provided that the terms themselves are
unambiguous when judged by a reasonable standard. When the
terms of a contract are ambiguous, and the parties attach different
meanings to the ambiguous terms, a “meeting of the minds” is
not established. Hempstead Park Nursing Home, 341 NLRB
321, 322 (2004); see also Windward Teachers Assn., 346 NLRB
at 1150.
1. The parties reached a meeting of the minds about contract
terms on September 29, 2017, and on November 13, 2017, had
Precision Concrete, 334 F.3d at 91–93 (finding that the complaint alle-
gation that the employer told an employee he was being transferred be-
cause he wore a union t-shirt was not closely related to a timely underly-
ing unfair labor practice charge).
NAPLETON 1050, INC. D/B/A NAPLETON CADILLAC OF LIBERTYVILLE 11
a document that accurately reflected their agreement
As established in the evidentiary record, the parties met for
contract negotiations on September 29, 2017. Early in that bar-
gaining session, the parties identified the following seven items
that were still in dispute regarding the collective-bargaining
agreement: (a) the steps that would be required before an em-
ployee could be terminated for disciplinary reasons; (b) the pen-
sion/retirement (401(k)) plan; (c) health insurance deductibles
and copays; (d) whether employee layoffs would be made based
on productivity or seniority; (e) wage rates; (f) a union security
provision; and (g) the length of the agreement. The Union and
Respondent bargained to agreement on each of those issues,
leaving only some housekeeping in the form of preparing a wage
scale that reflected the parties’ agreement and obtaining contract
language from the Union’s attorney about holding Respondent’s
contributions to the 401(k) plan in escrow for a 6-month waiting
period. The Union addressed the housekeeping issues and sent
a written contract for Respondent to review on November 1,
2017. After an exchange of emails, Respondent notified the Un-
ion on November 13, 2017, that the written contract was “good
to go.” However, when the Union asserted that the striking em-
ployees were entitled to immediate reinstatement, Respondent
indicated (on Nov. 15, 2017) that it would not execute the col-
lective-bargaining agreement. (FOF, sec. II(D)–(F).)
Based on the evidentiary record, I find that on September 29,
2017, the parties reached a meeting of the minds on all substan-
tive and material terms of the collective-bargaining agreement.
I also find that the written collective-bargaining agreement that
the Union prepared (on Nov. 1, 2017) and that Respondent ap-
proved (on Nov. 13, 2017) accurately reflected the terms of the
parties’ September 29 agreement. Neither of those findings is in
dispute – indeed, both Hendricks’ trial testimony and Respond-
ent’s position statement (among other evidence) recognize that
the parties reached agreement on all provisions of the collective-
bargaining agreement, and further recognize that the written col-
lective-bargaining agreement reflected what the parties agreed
to. (FOF, sec. II(E).) In light of those facts, I find that Respond-
ent was obligated to execute the November 1, 2017 contract that
reflected the parties’ September 29, 2017 agreement.
2. The parties’ disagreements about having the striking em-
ployees return to work did not relieve Respondent of its obliga-
tion to execute the contract
Respondent asserts that is not obligated to execute the collec-
tive-bargaining agreement because the parties did not also have
a meeting of the minds about the conditions under which the
striking employees could return to work. That argument is un-
persuasive. First, as discussed above, the legal standard that ap-
plies here establishes that once the parties have a meeting of the
minds on all substantive issues and material terms of the collec-
tive-bargaining agreement, and that agreement is accurately re-
duced to writing, the parties are obligated to execute the agree-
ment. Those conditions were fulfilled in this case. There is no
17 I recognize that the parties used the term “dealbreaker” to refer to
their disagreement about having the striking employees return to work.
That language, however, falls well short of establishing that the parties
had an express agreement to set, as a condition precedent to a contract, a
requirement that the parties resolve their differences about how the
additional requirement that the parties needed to see eye-to-eye
about other issues such as how striking employees may return to
work or how pending unfair labor practice charges should be re-
solved.
In connection with this point, I note that Respondent misses
the mark with its reliance on the Board’s decision in Mainte-
nance Service Corp., 275 NLRB 1422 (1985). (See R. Posttrial
Br. at 5–6.) In Maintenance Service Corp., the Board found that
the employer and union did not have a meeting of the minds on
whether the contract they negotiated permitted foremen to per-
form bargaining unit work, and therefore found that the em-
ployer did not violate the Act when it refused to sign the contract.
The key to the Board’s decision in Maintenance Service Corp. is
that the parties there did not have a meeting of the minds about
the meaning of the contract. See id. at 1426–1427. Here, by
contrast, the parties were in full agreement on the contract and
its terms and meaning—the disagreement about whether the
striking employees were entitled to immediate reinstatement was
an entirely separate issue.
Second, there is no evidence that the parties agreed to set, as
a condition precedent to a contract, a requirement that the parties
agree on how the striking employees would return to work. Cf.
Teamsters Local 287 (Granite Rock Co.), 347 NLRB 339 (2006),
enfd. 293 Fed.Appx. 518 (9th Cir. 2008) (noting that parties ne-
gotiating a contract may make employee ratification a condition
precedent to forming a contract, but only by reaching an express
agreement to that effect). Indeed, when Respondent (on Sep. 29
and Nov. 1, 2017) asked how the Union wanted to handle having
striking employees return to work, the Union replied that the par-
ties should put that issue aside and focus on pinning down the
terms of the collective-bargaining agreement. The parties pro-
ceeded in the manner that the Union proposed (see FOF, sec.
II(D)–(E)), and once they agreed on contract terms, that agree-
ment was final and binding because no agreed condition prece-
dent(s) stood in the way.17
In sum, I find that Respondent violated Section 8(a)(5) and (1)
of the Act when, on November 15, 2017, Respondent failed and
refused to execute a collective-bargaining agreement that re-
flected the terms of Respondent’s September 29, 2017 agreement
with the Union.
D. Was Respondent Obligated to Immediately Reinstate the
Striking Employees Upon Receiving Their March 22, 2018 Un-
conditional Offers to Return to Work?
The General Counsel also alleges that Respondent violated
Section 8(a)(3) and (1) of the act by, since about March 26, 2018,
failing and refusing to reinstate (or offer to reinstate) nine em-
ployees who made unconditional offers to return to work after
engaging in a strike that was prolonged by unfair labor practices
(specifically, Respondent’s Nov. 15, 2017 refusal to execute the
collective-bargaining agreement). The merits of that allegation
turn (in part) on whether what admittedly began as an economic
strike was later converted to an unfair labor practice strike.
striking employees would return to work. Indeed, the Union made it
clear that the parties’ dispute about the striking employees should not
prevent the parties from nailing down the terms of the contract, and that
is how the parties proceeded.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
The Board’s standard for determining whether an economic
strike has been converted to an unfair labor practice strike is well
settled. Relying on both objective and subjective factors, the
General Counsel has the burden of showing that the unfair labor
practice was a factor in prolonging the strike. Objective factors
include evidence of conduct that has a reasonable tendency to
prolong a strike, while subjective factors include evidence that
the strikers’ subjective motivations for continuing the strike in
fact did change as a result of the unfair labor practice. Gaywood
Manufacturing Co., 299 NLRB 697, 700 (1990); see also Ryan
Iron Works, 332 NLRB 506, 507 (2000), enforcement denied in
pertinent part on other grounds, 257 F.3d 1 (1st Cir. 2001); F. L.
Thorpe & Co., 315 NLRB 147, 149–150 (1994), enforcement
denied in part on other grounds, 71 F.3d 282 (8th Cir. 1995).
I find that the General Counsel met its burden of showing that
the economic strike converted to an unfair labor practice strike
on November 15, 2017, the day that Respondent unlawfully re-
fused to execute the collective-bargaining agreement that the
parties negotiated. Respondent’s unlawful refusal certainly had
a reasonable tendency to prolong the strike, because the employ-
ees went on strike to put economic pressure on Respondent to
negotiate a contract, and Respondent’s unlawful refusal to exe-
cute the contract logically caused the strikers to resume their
strike to protest Respondent’s decision to renege on the deal, and
to secure the contract that they (through the Union) negotiated.
That conclusion is supported by the subjective evidence pre-
sented at trial, which established that the employees took the
strike line down after they ratified the contract, and then (under-
standably) put the strike line up again and began carrying unfair
labor practice signs once Respondent refused to sign the con-
tract. See FOF, sec. II(F); Vulcan-Hart Corp., 262 NLRB 167,
168 fn. 4 (1982) (observing that since the employees planned to
strike until the employer agreed to a contract, Respondent pro-
longed the strike when it engaged in misconduct that would pre-
clude a contract from ever being reached), enfd. in pertinent part
718 F.2d 269 (8th Cir. 1983).
Since the strike did not convert to an unfair labor practice
18 The evidence presented at trial on whether and when Respondent
permanently replaced any of the striking employees was, at best, sparse.
(See FOF, sec. II(B).) Since the Board has indicated that this issue may
be addressed during compliance, however, I take no position on the cred-
ibility, weight or merits of any evidence on this issue. Similarly, to the
extent that Respondent maintains that there were no suitable openings
for economic strikers to fill after they unconditionally offered to return
to work, that issue also should be addressed during compliance. (See R.
Posttrial Br. at 11 (presenting this argument).)
19 I am not persuaded by Respondent’s argument that the March 22,
2018 offer to return to work was not unconditional. (See R. Posttrial Br.
at 11.) Respondent maintains that the Union’s offer (on behalf of the
striking employees) was predicated on Respondent displacing all re-
placement workers, but the March 22, 2018 return to work offer does not
include any such limitation. (See FOF, sec. II(H); see also FOF, sec.
II(F) (Nov. 14, 2017 return to work offer).) To be sure, the Union and
Respondent still disagreed about whether the striking employees were
economic or unfair labor practice strikers, but it is a step too far to assert
that the striking employees only offered to return to work if Respondent
first displaced all replacement workers.
20 To the extent that Respondent passed over any economic strikers
when filling relevant vacancies on or after March 22, 2018, I note that
strike until November 15, 2017, that raises a question about
whether and when Respondent permanently replaced any of the
striking employees. If Respondent permanently replaced any
striking employees on or after November 15, those strikers are
entitled to immediate reinstatement and backpay (once they
made an unconditional offer to return to work) because they were
replaced when they were unfair labor practice strikers. On the
other hand, if Respondent permanently replaced any striking em-
ployees before November 15 (i.e., at a time when they were eco-
nomic strikers), then those individuals would only have the pre-
ferred reinstatement rights of economic strikers. The Board has
indicated that these questions may be resolved in the compliance
phase of the case. Ryan Iron Works, 332 NLRB at 508; F. L.
Thorpe & Co., 315 NLRB at 152; Gaywood Manufacturing Co.,
299 NLRB at 701; Rose Printing Co., 289 NLRB 252, 253
(1988).18
Turning to the facts of this case, the evidentiary record shows
that the nine striking employees at issue here made an uncondi-
tional offer to return to work on March 22, 2018.19 Respondent
received the unconditional offer to return to work on March 22,
2018, and responded on March 26, 2018, by asserting that the
strikers would be placed on a preferential re-hire list (as if they
all were economic strikers). Respondent, however, did not fol-
low through with that limited promise, as it: hired multiple new
(nonstriker) employees into bargaining unit positions on or after
March 22, 2018; did not offer positions to striking employees
when replacement workers terminated their employment on or
after March 22, 2018; and offered reinstatement to the striking
employees on various dates in June and July 2018, but on the
improper condition that they accept terms and conditions of em-
ployment that were less generous than what the Union and Re-
spondent negotiated for the initial collective-bargaining agree-
ment that Respondent unlawfully failed to execute on November
15, 2017.20 (FOF, sec. II(H), (J).)
Based on those facts, I find that Respondent violated Section
8(a)(3) and (1) of the Act by, since March 22, 2018:21 not offer-
ing immediate reinstatement to any unfair labor practice strikers
Respondent did not proffer any legitimate and substantial business justi-
fications for those decisions. See Capehorn Industry, 336 NLRB 364,
365 (2001) (explaining that “an employer will be held to violate Sec.
8(a)(3) and (1) of the Act if it fails to immediately reinstate [economic
strikers] on their unconditional offer to return to work, unless the em-
ployer can establish a ‘legitimate and substantial business justification’
for its failure to do so”).) As previously indicated, however, Respondent
may use the compliance phase of the case to prove, as its business justi-
fication for not rehiring economic strikers, that the strikers were perma-
nently replaced. See id. (explaining that the permanent replacement of
an economic striker is recognized as a legitimate and substantial business
justification for refusing to immediately reinstate the former economic
striker).
21 I emphasize that March 22, 2018, is the precise starting date of Re-
spondent’s obligation to immediately reinstate any unfair labor practice
strikers and place any economic strikers on a preferential rehire list. The
complaint identifies March 22, 2018, as the date that the striking employ-
ees unconditionally offered to return to work, and I have found that the
offer was indeed made and received on that day. (See FOF, sec. II(H).)
To the extent that the General Counsel suggests that Respondent was ob-
ligated to begin bringing employees back to work based on the Novem-
ber 14, 2017 offer to return to work (see, e.g., GC Posttrial Br. at 21, 26
NAPLETON 1050, INC. D/B/A NAPLETON CADILLAC OF LIBERTYVILLE 13
who made unconditional offers to return to work; and not placing
any economic strikers on a preferential hiring list and reinstating
them before any other employees were hired or on the departure
of their pre-strike-conversion replacements. As noted above, I
will leave to compliance the determination of which returning
strikers were unfair labor practice strikers.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Since October 18, 2016, the Union has been the exclusive
collective-bargaining representative of the employees in the bar-
gaining unit.
4. On September 29, 2017, Respondent and the Union
reached a complete agreement on the terms and conditions of an
initial collective-bargaining agreement.
5. On November 13, 2017, Respondent and the Union agreed
that the written contract that the Union presented to Respondent
on November 1, 2017, accurately reflected the terms of the
agreement that the parties reached on September 29, 2017.
6. By failing and refusing, since November 15, 2017, to exe-
cute a collective-bargaining agreement that reflects the terms of
the September 29, 2017 agreement between Respondent and the
Union, Respondent violated Section 8(a)(5) and (1) of the Act.
7. On November 15, 2017, the economic strike of the follow-
ing nine striking employees converted to an unfair labor practice
strike: Chris Becharas; Goran Bogojevic; John Drucker; Mir Iq-
bal; Grant Kelley; Jeffrey McEntee; William Oberg; Mike
Schiro; and Joseph Schubkegel.
8. On March 22, 2018, the nine striking employees made an
unconditional offer to return to work. Respondent received the
offer on the same day.
9. By, since receiving the striking employees’ unconditional
offers to return to work on March 22, 2018, failing and refusing
to offer immediate reinstatement to any unfair labor practice
strikers, and/or failing and refusing to place any economic strik-
ers on a preferential hiring list and reinstate them before any
other employees were hired or on the departure of their pre-
strike-conversion replacements, Respondent violated Section
8(a)(3) and (1) of the Act.
10. The unfair labor practices stated in conclusions of law 6
and 9, above, affect commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I shall order it to cease and desist therefrom and
to take certain affirmative action designed to effectuate the poli-
cies of the Act. Specifically, having found that Respondent vio-
lated Section 8(a)(5) and (1) of the Act by failing and refusing to
execute a collective-bargaining agreement reflecting the Sep-
tember 29, 2017 agreement that it reached with the Union, I shall
fn. 13), I do not accept that argument because it is not alleged in the
complaint and was not fully litigated. And, to the extent that Respondent
might maintain that its obligations did not begin until March 26, 2018
(based on the complaint allegation that Respondent failed and refused to
order Respondent to execute and implement the agreement and
give retroactive effect to its terms. I shall also order Respondent
to make bargaining unit employees whole for any losses attribut-
able to Respondent’s failure to execute the agreement, as set
forth in Ogle Protection Service, 183 NLRB 682 (1970), enfd.
444 F.2d 502 (6th Cir. 1971), with interest at the rate prescribed
in New Horizons, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB 6
(2010).
Regarding Respondent’s violation of Section 8(a)(3) and (1)
of the Act through its actions after the striking employees made
their March 22, 2018 unconditional offers to return to work, I
shall require Respondent to take the steps set forth in this para-
graph. Concerning any former unfair labor practice strikers who
were not offered immediate reinstatement, I shall require Re-
spondent, if it has not already done so, to reinstate them imme-
diately to their former positions or, if those positions no longer
exist, to substantially equivalent positions, without prejudice to
their seniority and other rights and privileges, discharging if nec-
essary all replacements hired after November 15, 2017. If, after
such dismissals, there are insufficient positions available for the
remaining former unfair labor practice strikers, those positions
which are available shall be distributed among them without dis-
crimination because of their union membership or activities or
participation in the strike, in accordance with seniority or other
nondiscriminatory practice used by Respondent. The remaining
former unfair labor practice strikers, as well as those former
strikers who were permanently replaced before the strike con-
verted to an unfair labor practice strike, for whom no employ-
ment is immediately available, shall be placed on a preferential
hiring list in accordance with seniority or other nondiscrimina-
tory practice used by Respondent, and they shall be reinstated
before any other persons are hired or on the departure of their
pre-strike-conversion replacements. See Ryan Iron Works, 332
NLRB at 509; Gaywood Manufacturing Co., 299 NLRB at 701–
702. Former unfair labor practice strikers who were denied im-
mediate reinstatement in response to their unconditional offer to
return to work shall also be made whole for any loss of earnings
they may have suffered. The make whole remedy shall be com-
puted in accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest at the rate prescribed in New Horizons, su-
pra, compounded daily as prescribed in Kentucky River Medical
Center, supra.
To the extent that the compliance phase of this case establishes
that one or more of the striking employees was an economic
striker (i.e., a former striker who was permanently replaced be-
fore the strike converted to an unfair labor practice strike) and
was not recalled on or after March 22, 2018, by Respondent to
fill a vacant position to which they were entitled based on the
preferential hiring list, I shall require Respondent to immediately
recall them to the position they occupied at the time they went
on strike, or to a substantially equivalent position, with full sen-
iority and all other rights and privileges. I shall also require
reinstate striking employees since “about March 26, 2018”), I find that
the March 22, 2018 date is established by the evidentiary record and is
within the scope of the since “about March 26, 2018” complaint lan-
guage.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
Respondent to make any such employees whole for the discrim-
ination against them by paying the sum of money equal to what
each would have earned from the date that each should have been
recalled until the date each is recalled. See Medite of New Mex-
ico, Inc., 314 NLRB 1145, 1149 (1994), enfd. 72 F.3d 780 (10th
Cir. 1995). This make whole remedy shall be computed in ac-
cordance with F. W. Woolworth Co., supra, with interest at the
rate prescribed in New Horizons, supra, compounded daily as
prescribed in Kentucky River Medical Center, supra.
In accordance with King Soopers, Inc., 364 NLRB No. 93
(2016), enfd. in pertinent part 859 F.3d 23 (D.C. Cir. 2017), Re-
spondent shall compensate any former unfair labor practice strik-
ers, as well as any economic strikers who unlawfully were not
recalled to work in a timely manner, for their search-for-work
and interim employment expenses regardless of whether those
expenses exceed their interim earnings. Search-for-work and in-
terim employment expenses shall be calculated separately from
taxable net backpay, with interest at the rate prescribed in New
Horizons, supra, compounded daily as prescribed in Kentucky
River Medical Center, supra.
In accordance with Don Chavas, LLC d/b/a Tortillas Don
Chavas, 361 NLRB 101 (2014), Respondent shall compensate
all bargaining unit employees for the adverse tax consequences,
if any, of receiving a lump-sum backpay award, and, in accord-
ance with AdvoServ of New Jersey, Inc., 363 NLRB No. 143
(2016), Respondent shall, within 21 days of the date the amount
of backpay is fixed either by agreement or Board order, file with
the Regional Director for Region 13 a report allocating backpay
to the appropriate calendar year(s). The Regional Director will
then assume responsibility for transmitting the report to the So-
cial Security Administration at the appropriate time and in the
appropriate manner.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended22
ORDER
Respondent, Napleton 1050, Inc., d/b/a Napleton Cadillac of
Libertyville, Libertyville, Illinois, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to execute a collective-bargaining
agreement that reflects the agreement that Respondent and the
Union reached on September 29, 2017, regarding the terms and
conditions of an initial collective-bargaining agreement.
(b) Failing and refusing to reinstate unfair labor practice strik-
ers upon their unconditional offers to return to work and/or fail-
ing and refusing to recall economic strikers, following their un-
conditional offers to return to work, to positions they occupied
at the time they went on strike or to substantially equivalent po-
sitions when a vacancy occurs. (The strikers are: Chris Be-
charas; Goran Bogojevic; John Drucker; Mir Iqbal; Grant Kel-
ley; Jeffrey McEntee; William Oberg; Mike Schiro; and Joseph
Schubkegel.)
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
22 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) On request of the Union, forthwith execute the collective-
bargaining agreement that the Union submitted to Respondent
for signature on or about November 1, 2017, and give retroactive
effect to the terms of that agreement to September 29, 2017 (the
effective date of the agreement).
(b) Make bargaining unit employees whole for any losses they
have suffered as a result of Respondent’s failure to sign and ef-
fectuate the agreement, plus daily compound interest, as set forth
in the remedy section of this decision.
(c) Within 14 days from the date of this Order, offer those
former unfair labor practice strikers who Respondent has not yet
reinstated since their March 22, 2018 unconditional offer to re-
turn to work full and immediate reinstatement to their former
jobs or, if those no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other rights and priv-
ileges, discharging, if necessary, any replacements hired on or
after November 15, 2017.
(d) Make whole all unfair labor practice strikers who were not
permanently replaced before November 15, 2017, to whom Re-
spondent failed to offer reinstatement upon their March 22, 2018
unconditional offer to return to work, for any loss of earnings
they may have suffered, plus daily compound interest, as set
forth in the remedy section of this decision.
(e) Within 14 days from the date of this Order, offer immedi-
ate recall to all former economic strikers who Respondent did
not recall after their March 22, 2018 unconditional offer to return
to work to fill a vacant position to which they were entitled based
on the preferential hiring list. For any such employees, Respond-
ent shall immediately recall them to the position they occupied
at the time they went on strike, or to a substantially equivalent
position, with full seniority and all other rights and privileges.
(f) Make whole all economic strikers who unlawfully were
not recalled in a timely fashion after their March 22, 2018 un-
conditional offer to return to work, for any loss of earnings they
may have suffered, plus daily compound interest, as set forth in
the remedy section of this decision.
(g) Compensate bargaining unit employees for the adverse
tax consequences, if any,
of receiving lump-sum backpay awards, and file with the Re-
gional Director for Region 13, within 21 days of the date the
amount of backpay is fixed, either by agreement or Board order,
a report allocating the backpay awards to the appropriate calen-
dar year(s).
(h) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or
its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records,
including an electronic copy of such records if stored in elec-
tronic form, necessary to analyze the amount of backpay due un-
der the terms of this Order.
(i) Within 14 days after service by the Region, post at its
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
NAPLETON 1050, INC. D/B/A NAPLETON CADILLAC OF LIBERTYVILLE 15
facilities in Libertyville, Illinois, copies of the attached notice
marked “Appendix.”23 Copies of the notice, on forms provided
by the Regional Director for Region 13, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in conspic-
uous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced, or
covered by any other material. In addition to physical posting of
paper notices, the notice shall be distributed electronically, such
as by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means.
(j) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C., June 24, 2019.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT fail and refuse to execute a collective-bargaining
agreement that reflects the agreement that we and the Union
reached on September 29, 2017, regarding the terms and condi-
tions of an initial collective-bargaining agreement.
WE WILL NOT fail and refuse to reinstate unfair labor practice
strikers upon their unconditional offers to return to work and/or
fail and refuse to recall economic strikers, following their uncon-
ditional offers to return to work, to positions they occupied at the
time they went on strike or to substantially equivalent positions
when a vacancy occurs. (The strikers are: Chris Becharas; Goran
Bogojevic; John Drucker; Mir Iqbal; Grant Kelley; Jeffrey
McEntee; William Oberg; Mike Schiro; and Joseph Schub-
kegel.)
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL, on request of the Union, forthwith execute the col-
lective-bargaining agreement that the Union submitted to us for
signature on or about November 1, 2017, and give retroactive
23 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
effect to the terms of that agreement to September 29, 2017 (the
effective date of the agreement).
WE WILL make bargaining unit employees whole for any
losses they have suffered as a result of our failure to sign and
effectuate the collective-bargaining agreement, plus interest
compounded daily.
WE WILL offer those former unfair labor practice strikers who
we have not yet reinstated since their March 22, 2018 uncondi-
tional offer to return to work full and immediate reinstatement to
their former jobs or, if those no longer exist, to substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges, and WE WILL discharge, if necessary, any
replacements hired on or after November 15, 2017.
WE WILL make whole all unfair labor practice strikers who
were not permanently replaced before November 15, 2017, to
whom we failed to offer reinstatement upon their March 22, 2018
unconditional offer to return to work, for any loss of earnings
they may have suffered, plus daily compound interest.
WE WILL offer immediate recall to all former economic strik-
ers who we did not recall after their March 22, 2018 uncondi-
tional offer to return to work to fill a vacant position to which
they were entitled based on the preferential hiring list. For any
such employees, WE WILL immediately recall them to the position
they occupied at the time they went on strike, or to a substantially
equivalent position, with full seniority and all other rights and
privileges.
WE WILL make whole all economic strikers who unlawfully
were not recalled in a timely fashion after their March 22, 2018
unconditional offer to return to work, for any loss of earnings
they may have suffered, plus daily compound interest.
WE WILL compensate bargaining unit employees for the ad-
verse tax consequences, if any, of receiving lump-sum backpay
awards, and file with the Regional Director for Region 13, within
21 days of the date the amount of backpay is fixed, either by
agreement or Board order, a report allocating the backpay
awards to the appropriate calendar year(s).
NAPLETON 1050, INC. D/B/A NAPLETON CADILLAC OF
LIBERTYVILLE
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/13–CA–209951 or by using the QR
code below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E. Washington, D.C. 20570, or by calling
(202) 273-1940.
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16