Bob Townsend/Colerain Ford

National Labor Relations Board - Board Decisions

Nov 29, 2007

351 N.L.R.B. 1079 (N.L.R.B. 2007)

BOB TOWNSEND/COLERAIN FORD
351 NLRB No. 64
1079
Consolidated Equities Realty #3, LLC d/b/a Bob
Townsend/Colerain Ford and District Lodge 34,
International Association of Machinists and
Aerospace Workers, AFL–CIO. Cases 9–CA–
42545, 9–CA–42709, 9–CA–42710, and 9–CA–
42921
November 29, 2007
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On March 26, 2007, Administrative Law Judge George
Carson II 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 delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions1 and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order as modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Consoli-
dated Equities Realty #3, LLC d/b/a Bob Town-
send/Colerain Ford, Cincinnati, Ohio, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified.
Substitute the following for paragraph 2(b).
“(b) Make Stanley Walton, Harold Thornton, Samuel
Dishun and the Estate of Kevin Botkins whole for any
loss of earnings and other benefits suffered as a result of

1 There are no exceptions to the judge’s dismissal of the allegations
that the Respondent violated Sec. 8(a)(1) of the Act by threatening that
unionization would be futile, or Sec. 8(a)(3) and (1) of the Act by lay-
ing off employee Stanley Walton. There are also no exceptions to the
judge’s finding that the Respondent violated Sec. 8(a)(5) and (1) of the
Act by unilaterally warning and discharging employee Samuel Dishun.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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 contends that some of the judge’s findings and con-
clusions demonstrate prejudice. On careful examination of the judge’s
decision and the entire record, we are satisfied that the Respondent’s
contentions are without merit.
3 We shall modify the judge’s recommended Order to conform to the
violations found.
the unlawful action taken against them, in the manner set
forth in the remedy section of the decision.”
David L. Ness, Esq., for the General Counsel.
James F. Hendricks Jr. and Michael P. MacHarg (on Brief),
Esqs., for the Respondent.
David L. Porter, for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. This case
was tried in Cincinnati, Ohio, on January 23, 2007, pursuant to
a consolidated complaint that issued on August 23, 2006.1 The
complaint alleges that the Respondent threatened employees
that it would never sign a collective-bargaining agreement in
violation of Section 8(a)(1) of the National Labor Relations Act
(the Act), laid off employee Stanley Walton because of his
union activities in violation of Section 8(a)(3) of the Act, and
laid off Walton, Kevin Botkins, and Harold Thornton and
warned and discharged Samuel Dishun without notice to or
bargaining with the Union in violation of Section 8(a)(5) of the
Act. I find no violation of Section 8(a)(1) and (3) of the Act,
but find that the Respondent did violate Section 8(a)(5) of the
Act as alleged in the complaint.2
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 the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Consolidated Equities Realty #3, LLC d/b/a
Bob Townsend/Colerain Ford, the Company, is a corporation
engaged in the retail sale and service of automobiles at its fa-
cilities on Colerain Avenue, Cincinnati, Ohio. The Company
annually derives gross revenues is excess of $500,000 from its
operations and purchases and receives goods valued in excess
of $50,000 directly from points outside the State of Ohio. The
Respondent admits, and I find and conclude, that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
The Respondent admits, and I find and conclude, that Dis-
trict Lodge 34, International Association of Machinists and

1 All dates are in 2005, unless otherwise indicated. The charge in
Case 9–CA–42545 was filed on January 6, 2006, and amended on
January 18, 2006. The charge in Case 9–CA–42709 was filed on
March 16, 2006, and was amended on June 26, 2006. The charge in
Case 9–CA–42710 was filed on March 16, 2006. The charge in Case
9–CA–42921 was filed on June 26, 2006, and was amended on August
21, 2006.
2 At the outset of the hearing, I denied a motion by counsel for the
General Counsel to keep the record open for the potential consolidation
of Case 9–CA–43304 with these cases. The investigation of the charge
in that case had not been concluded. The conduct alleged in that charge
is unrelated to the allegations of the complaint and occurred in Novem-
ber 2006, almost a year after the alleged unfair labor practices in this
proceeding.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1080
Aerospace Workers, AFL–CIO, the Union, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Bob Townsend Ford operated as an automobile dealership on
Colerain Avenue in Cincinnati beginning in the late 1960s. On
September 1, 2005, the dealership was purchased by Consoli-
dated Equities Realty #3, LLC, a corporation formed by three
investors including Yun Hee Jang, who is president and chief
executive officer. Since September 1, she has been directly
involved in the operations of Bob Townsend/Colerain Ford.
The dealership has a parts and service department. In Septem-
ber, the service department operated with four teams, desig-
nated as the red, blue, yellow, and green teams, each of which
included a service writer, who met and directly dealt with cus-
tomers, and automotive technicians, one of whom was the lead
technician, who actually performed the maintenance and repair
of the vehicles.
Union activity among the employees began shortly after the
Company purchased what had formerly operated as Bob Town-
send Ford. Representation petitions were filed and, in Novem-
ber, elections were held in three separate units. On November
8, a representation election was held in the automotive techni-
cians unit, and on November 16, the Union was certified as the
exclusive collective-bargaining representative of that unit.
Following separate representation elections held on November
18, the Union, on November 28, was certified as the exclusive
collective-bargaining representative of the service writers unit
and parts department unit, respectively.3
The alleged threat that the Respondent would never sign a
collective-bargaining agreement purportedly occurred before
the elections. The remaining allegations relate to conduct that
occurred after the elections. The layoffs occurred in late No-
vember, and the discharge occurred on December 29.
B. The 8(a)(1) Allegation
The complaint alleges that President Jang threatened em-
ployees with the futility of organizing by stating that the Com-
pany would never sign a contract with the Union. Following
the filing of the representation petitions, Jang hired a consultant
who spoke to employees regarding unionization. Employees

3 The automotive technicians unit is:
All full-time and regular part-time automotive technicians employed
by the Employer at its 8571 Colerain Avenue, Cincinnati, Ohio facil-
ity, but excluding all other employees, including parts department em-
ployees, service advisors, shuttle drivers, porters, lot techs, body shop
employees, office clerical employees, professional employees and all
guards and supervisors as defined in the Act.
The service writers unit is:
All full-time and regular part-time service writers employed by the
Employer at its 8571 Colerain Avenue, Cincinnati, Ohio facility, but
excluding office clerical employees, professional employees, guards
and supervisors as defined in the Act.
The parts department unit is:
All full-time and regular part-time parts department employees em-
ployed by the Employer at its 8571 Colerain Avenue, Cincinnati, Ohio
facility, but excluding office clerical employees, professional employ-
ees, guards and supervisors as defined in the Act.
recall that the individual was named Frank. The record does
not reflect Frank’s last name or whether he was an individual
consultant or an employee of a consulting firm. Frank made
separate presentations to the employees in the three separate
units. The complaint does not contain any allegation relating to
Frank. The evidence in support of the single complaint allega-
tion is that President Jang, who was present briefly at some of
the presentations, stated to the automotive technicians that the
Company would never sign a contract with the Union.
Automotive technician Gary Shuler recalled attending three
meetings at which Frank spoke. He initially testified that Jang
was present for some period of time at all of these meetings,
but, on cross-examination, admitted that he could not “say for
sure” whether she was present for the first meeting. He re-
called that Frank spoke about how the employees did not need a
union but recalled nothing specific that Frank said at any of the
meetings. At the last meeting, which he placed as occurring
about a week before the election but the date of which he could
not recall, Shuler recalled that Jang stated that she felt that em-
ployees had “disrespected her,” that she would spend “every
dime” to keep the Union out, and that, if the Union was voted
in, that she, “by law,” would have to “go meet,” but that she
“did not have to speak, negotiate a contract, or sign a contract.”
Stanley Walton, in his initial testimony, recalled only that
Jang said that she would spend “every dollar” to keep the Un-
ion out. When questioned by the representative of the Charging
Party, he recalled that Jang also stated that we “would not get a
contract.” Walton admitted that the foregoing statement was
not in a pretrial affidavit that he had signed on January 23,
2006, slightly more than 2 months after the event.
Jang acknowledged speaking to employees prior to the elec-
tions, but she denied making any statement relating to not sign-
ing a contract. She recalls that, following the elections in
which the employees in the three separate units selected the
Union as their collective-bargaining representative, employees
questioned her regarding what would happen next. In a meet-
ing that she places about 10 days after the elections, she in-
formed the employees that they “now had union representation”
but that she was not “legally required to agree to anything but I
did have to bargain in good faith, which I would do.”
No employee disputed Jang’s testimony that she spoke about
the Company’s bargaining obligation after the election. Both
Shuler and Walton heard Jang make some statement that they
interpreted and from which Walton concluded that the Union
would not get a contract and Shuler concluded that Jang would
not sign a contract. Either conclusion could have been drawn
from an interpretation of Jang’s admitted statement that she was
not “legally required to agree to anything.” I credit Jang’s de-
nial that she made any statement relating to not signing a con-
tract with the Union. I shall recommend that this allegation be
dismissed.
C. The 8(a)(3) Allegation
The complaint alleges that Stanley Walton was laid off be-
cause of his union activities in violation of Section 8(a)(3) of
the Act. Walton served as an observer for the Union at the
election. Pursuant to Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), in order to establish that an
BOB TOWNSEND/COLERAIN FORD 1081
employee has been discriminated against in violation of Section
8(a)(3) of the Act the General Counsel must establish that the
employee engaged in union activity, that the employer had
knowledge of that activity, that the employer bore animus to-
wards union activity, and that the employer’s animus was a
substantial and motivating factor for the alleged discriminatory
action. Walton’s presence at the election as an observer for the
Union establishes the criteria of activity and knowledge.
The General Counsel argues that animus is established by
Jang’s statement that she would never sign a contract with the
Union; however, I have found that she made no such statement.
Thus, because there is no direct evidence of animus, any find-
ing of animus must be inferred from the circumstances sur-
rounding the layoff of Walton. Although all employees shared
the same September 1 seniority date with the Company, Walton
had worked for the predecessor since 1994, and was fully certi-
fied to repair diesel engines. Only one other automotive tech-
nician, Greg Beetz, had worked longer for the predecessor and
only one other technician, Hugh Busch, was certified to repair
diesel engines. The General Counsel notes the foregoing,
points out that Walton had been chosen as a lead technician,
and argues that the Respondent’s selection of Walton was dis-
criminatorily motivated. I agree that choosing to lay off this
long-term skilled employee raises a suspicion of discriminatory
motivation; however, suspicion is no substitute for proof. The
Respondent, as hereinafter discussed, unilaterally determined to
“cut out” the blue team, whose service writer Harold Thornton
“volunteered” for layoff and whose lead automotive technician
was Walton. Thus, the Respondent acted consistently, albeit
unilaterally, by laying off Walton. Although, as hereinafter
discussed, I find that the foregoing unilateral action violated
Section 8(a)(5) of the Act, I shall recommend that the 8(a)(3)
allegation be dismissed.
D. The 8(a)(5) Allegations
1. Facts
When the Company took over the Bob Townsend dealership,
there was no hiatus. After commencing operations, Jang,
whose background is in accounting, realized that the parts and
service operations of the dealership, referred to as the fixed
operations, were not profitable. She testified that she and her
partners “focused on . . . [the] overstaffing of the departments.”
Asked whether she “took any steps during the first two months
of operations, mainly September and October, to cut the costs
of fixed operations,” Jang answered, “No, I didn’t, but I wanted
to.” Asked why she took no steps, Jang explained that she was
told by “our consultant” who was speaking to the employees
regarding unionization that she could not “do any kind of lay-
offs or anything to try to cut back on our expenses because . . . I
would be charged with unfair labor practices. So I would have
to wait until after the election.” It does not appear that the con-
sultant gave any advice or direction to her regarding the Com-
pany’s obligations in the event that the employees selected the
Union as their collective-bargaining representative.
Asked whether “after the election, did you take any steps to
cut costs at your dealership,” Jang answered that she did, that
“the main thing we wanted to do was look at the work and de-
cide who would be the best as far as the layoffs are concerned.
We had decided at that time that the best thing to do would be
to cut one team out of the service department.” (Emphasis
added.)
Jang admitted that she gave no notice or opportunity to bar-
gain to the Union. When asked whether, when she made the
decision to eliminate a team, she bargained with the Union,
Jang answered, “I didn’t think about it.”
On November 22, parts department employee Kevin Botkins
was laid off. Jang explained that the parts department had five
employees, two at the front desk who dealt with retail custom-
ers, and three at the back desk who provided parts to the auto-
motive technicians who repaired vehicles in the service de-
partment. Having made the decision to lay off a team in the
service department, Jang determined that three employees at the
back desk were unnecessary and laid off Botkins.
Service writer Harold Thornton was aware that business was
slow. He anticipated that the slow business could lead to lay-
offs. He was aware that, of the four service writers, he was the
most financially secure. He spoke with Service Manager John
Collins in mid-October, stating that he could feel “a change
happening.” He then told Collins that, if the Company was
“going to lay anyone off, please consider me.” He then ex-
plained to Collins that he felt he was better able “financially to
survive” due to the family commitments of the other service
writers.
On November 30, 2 days after the certification of the Union
as the collective-bargaining representative of the service writers
unit, Jang laid off Thornton, who was the service writer for the
blue team. She also laid off Walton, who was the lead techni-
cian on the blue team. Jang testified that Walton was selected
for layoff because the service writer for the blue team, Thorn-
ton, had “volunteered” to be laid off. The two technicians who
had been on the blue team, Jim Riley and Jason Holtman, an
asset student (an automotive technician in training), were reas-
signed to other teams, Riley to the green team, Holtman to the
red team.
On December 1, Union Business Representative Steven Gra-
ham wrote Jang, stating that it had been brought to his attention
that the Company had laid off bargaining unit members and
advising her that “layoffs are a mandatory subject of bargain-
ing.” The letter then states, “The Union demands that you rein-
state any and all represented members immediately with back
pay.”
On December 12, counsel for the Company responded. The
response does not address the request for reinstatement and
backpay, nor does it assert that that the layoff decisions were
made prior to the Union’s election victories. It states, “If and
when the company decides to reinstate anybody on lay-off they
will do so and notify you.”
In October, prior to the elections, the Company distributed
an employee handbook that addressed various matters including
absenteeism, tardiness, and discipline. In pertinent part the
handbook provides that “each employee is expected to be at
work on time each day. Excessive absenteeism or tardiness can
result in discipline, up to and including discharge.”
Although the employee handbook does not prescribe a pro-
gressive discipline system, documentary evidence, a suspension
issued to automotive technician Glenn Gillette in January 2006
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1082
after he was absent on a Thursday with no call in and on the
following day with a call in after noon, establishes that disci-
pline more severe than a warning but less severe than discharge
occurs. Jang admitted, and the foregoing suspension confirms,
that the level of discipline given by managers is discretionary.
Samuel Dishun began working in the parts department of the
predecessor in 1992. He continued to work in the parts de-
partment after the Company took over the dealership on Sep-
tember 1. It is undisputed that, prior to December 28, Dishun
had never been disciplined, and it is also undisputed that the
Company had not disciplined any employee for tardiness.
A stipulation by the parties reflects 62 instances of tardiness
by employees in the parts department from September through
December. In November, after the distribution of the hand-
book, employee Botkins, who was laid off on November 22,
was never tardy. Employee Andrew Edwards, who was not
laid off, was tardy five times, and employee Dishun, who was
not laid off, was tardy seven times.
In December, employee Edwards was tardy 3 times and em-
ployee Dishun was tardy 15 times. The record does not reflect
whether the tardies were for only a minute or two or for longer
periods of time. President Jang testified that discipline was not
triggered by a specific number of tardies, that it was within the
discretion of the manager. Bill Collins became manager of the
parts department in late November or early December. Jang
did not recall the date he was hired. She acknowledged that he
consulted with her before issuing a warning to Dishun on De-
cember 28 because he was a new manager.
On the evening of December 28, Parts Manager Bill Collins
called Dishun to his office and presented him with a written
warning stating that “[T]ardiness from Sam Dishun is not ac-
ceptable and he will be expected to be at work by the scheduled
time of 9:00 am everyday [sic] effective immediately.” Dishun
noted that there was a discrepancy between the timeclock and
the wall clock. Collins replied that he would “straighten that
out tomorrow.” There is no evidence that Dishun had been
tardy on December 28. It is undisputed that no notice was
given to the Union that Dishun had been disciplined for tardi-
ness.
On Thursday, December 29, Dishun arrived at work prior to
9 a.m., but, before clocking in, turned in his dirty uniforms,
which he did every Thursday. As he approached the timeclock,
he observed Parts Manager Collins at the timeclock. The wall
clock showed the time as 3 minutes past 9 a.m. Whether the
timeclock was synchronized with the wall clock will never be
known because Collins did not permit Dishun to punch the
timeclock. He discharged him, stating that he “just gave you a
written warning last night” and that he was 3 minutes late.
Dishun explained that he had “stopped to drop off my uniforms
at the locker room.” Collins told him, “Well, we’re done.” No
notice was given to the Union that Dishun was discharged.
Negotiations for collective-bargaining agreements covering
the three units began in March 2006, and concluded in Novem-
ber 2006. The current agreements, effective November 22,
2006, contain virtually identical general language but differing
provisions specific to the units regarding wages. All three
agreements contain the following article XXIII, definition of
agreement, commonly referred to as a zipper clause:
It is agreed that during the negotiations leading to the execu-
tion of this Agreement, the Union has had full opportunity to
submit all items appropriate for collective bargaining; that the
Union expressly waives the right to submit any additional
items for negotiation during the term of this Agreement irre-
spective of whether the item was or was not discussed during
the course of negotiations . . . and that this Agreement incor-
porates the full and complete understanding between the par-
ties . . ., all previously existing rights not specifically incorpo-
rated herein are hereby terminated.
Union Representative David Porter’s uncontradicted testi-
mony establishes that there was no discussion relating to the
effect of the foregoing paragraph in regard to the outstanding
complaint in this case, which had issued on August 23, 2006.
2. Analysis and concluding findings
The vice in failing to bargain regarding layoff decisions and
discharge decisions is “the injury to the union’s status as bar-
gaining representative.” Great Western Produce, 299 NLRB
1004, 1005 (1990). That injury was demonstrated at Bob
Townsend/Colerain Ford when the Respondent, without notice
to or consultation with the newly selected collective-bargaining
representative of the employees, began unilaterally laying off
employees and discharging them. It is undisputed that the Re-
spondent gave no notice or opportunity to bargain to the Union.
President Jang “didn’t think about it.”
a. The layoffs
The Respondent, in its brief, citing various cases including
Starcraft Aerospace, Inc., 346 NLRB 1228 (2006), and Con-
solidated Printers, 305 NLRB 1061, 1067 (1992), correctly
states that an employer is not obligated to bargain before carry-
ing out a decision made prior to a union demonstrating majority
support even though the decision is effectuated after the bar-
gaining obligation attaches. The Respondent argues that “the
unrebutted record testimony in this case proves that the Re-
spondent made the decision to lay off employees prior to the
Union’s certification.” Contrary to that argument, there is no
testimony, unrebutted or otherwise, that the Respondent made
any layoff decision prior to the Union demonstrating its major-
ity status, and no such contention was made by counsel for the
Respondent in his opening statement or at any other time at the
hearing. The only testimony quoted in the brief of the Respon-
dent is the testimony of Jang that the consultant informed her
that she could not “do any kind of layoffs or anything to try to
cut back on our expenses because . . . I would be charged with
unfair labor practices. So I would have to wait until after the
election.”
Jang did not claim that she had made a decision to “do lay-
offs or anything” at the time she received that advice from the
consultant. Consistent with that advice, she did nothing. She
waited until after the election to address the problem. Although
Jang and her partners were concerned about overstaffing, Jang
and her partners made no decision. When asked whether she
took any steps to cut costs in September and October, Jang
testified, “No, I didn’t, but I wanted to.” Jang did not testify
what she “wanted” to do. Regardless of what she wanted to do,
wanting to do something does not constitute deciding to do
BOB TOWNSEND/COLERAIN FORD 1083
something. When asked whether, “after the election,” she took
any steps to cut costs, Jang answered that “we,” referring to
herself and her partners, wanted to “look at the work and decide
who would be the best as far as the layoffs are concerned. We
had decided at that time that the best thing to do would be to
cut one team out of the service department.” (Emphasis
added.) The Respondent’s brief does not cite the foregoing
testimony.
In Starcraft Aerospace, Inc., supra, slip op. at 2 and 6, the
Board determined that the layoff decision therein was made
prior to December 8 and discussed by management on Decem-
ber 8, 3 days prior to a representation election scheduled for
December 11. In that discussion, counsel cautioned that, if the
decision was implemented prior to the election, it could be
perceived as an unfair labor practice. In this case, there is no
evidence that any decision was made prior to the election in the
automotive technicians union, which occurred on November 8,
or the November 18 elections in the service writers and parts
department units. Jang did not at any time claim that the lay-
offs were implemented pursuant to a decision made prior to the
elections in which the Union demonstrated its majority status.
Following the advice of the consultant, Jang waited until after
the elections to make any decisions or take any steps to reduce
costs. The absence of any decision prior to the elections is
established by Jang’s testimony. In response to being asked
whether “after the election” she took steps to cut costs, Jang
answered that she and her partners “look[ed] at the work” and
“decide[d] . . . at that time . . . to cut one team out of the service
department.” Jang and her partners had not even looked at the
work with a view towards layoffs until after the election, much
less made a decision that was then held in abeyance until after
the elections.
President Jang admitted that the layoffs occurred in order to
reduce labor costs. Thus, the decision falls under the second
category of management decisions enumerated in First Na-
tional Maintenance Corp. v. NLRB, 452 U.S. 666 (1981), that
are “almost exclusively ‘an aspect of the relationship’ between
employer and employee” and are mandatory subjects of bar-
gaining. Kajima Engineering & Construction, 331 NLRB
1604, 1620 (2000). Thus, in this case as in Kajima Engineering
& Construction, “it is unnecessary to engage in the Dubuque
Packing Co. [303 NLRB 386 (1991)] . . . type of multistep
analysis regarding subjects falling within this category . . . [be-
cause] the lack of available work layoff decisions here consti-
tuted mandatory subjects of bargaining. Winchell Co., 315
NLRB 526 fn. 2 (1994); Westinghouse Electric Corp., 313
NLRB 452, 453 (1993); Holmes & Narver, [309 NLRB 146
(1992)] . . . at 147.” Ibid.
Even when an employer has a past policy of laying off em-
ployees when business is slow, after a bargaining obligation
exists it is not free to act unilaterally. It must give notice and
bargain with the employees’ collective-bargaining representa-
tive. Adair Standish Corp., 292 NLRB 890 (1989). This Re-
spondent had no established policy or practice regarding reduc-
tion of its fixed costs. There was no past practice that employ-
ees who indicated a willingness to be considered for layoff
would automatically be chosen. As the General Counsel cor-
rectly points out, Thornton’s willingness to be considered if a
layoff occurred did not vitiate the Respondent’s bargaining
obligation. All American Gourmet, 292 NLRB 1111, 1135
(1989). Nor was there any precedent for automotive technician
Walton, who had been assigned to the blue team but whose
duties were totally different from those of service writer Thorn-
ton, becoming collateral damage due to Thornton’s actions.
Although Jang testified that the decision made was “to cut one
team out of the service department,” the blue team was not cut
out entirely. Only the service writer and lead technician were
laid off. The two technicians who worked under lead techni-
cian Walton, one of whom was in training, were retained and
assigned to different teams.
It requires little speculation to believe that the Union, had it
been given the opportunity, would have maintained that, insofar
as the entire blue team was not being laid off, Walton, who had
served as an observer for the Union at the representation elec-
tion and who was second in seniority with the predecessor and
certified to repair diesel engines, should not be laid off. Costs
could be reduced in various ways other than layoffs, including
introducing rotating shifts or instituting the option of job shar-
ing. See Holmes & Narver, supra at 147. Union Steward Gary
Shuler testified that, when former team leader, Bob Lay, had
that position taken away, he was “moved down” to automotive
technician. Although the record does not establish whether this
occurred under the Respondent or the predecessor, demotion of
Walton, rather than layoff, was certainly an option open to the
Respondent.
Similarly, insofar as there was no notice to the Union regard-
ing the layoff of a parts department employee, there was no
opportunity for the Union to argue that Botkins should not be
laid off and some other adjustment be made, such as dividing
the total hours needed to operate the parts department among
the work force. I am mindful that Botkins’ layoff on November
22 occurred after the parts department employees selected the
Union as their collective-bargaining representative in the repre-
sentation election but prior to the Union’s certification. It is
well settled that an employer’s unilateral actions during the
period pending certification following a union’s election vic-
tory are taken at its peril.
The Respondent, by addressing the need to reduce fixed
costs by unilaterally implementing a policy of layoffs without
notice to or bargaining with the Union and thereafter selecting
the employees to be laid off without notice to or bargaining
with the Union violated Section 8(a)(5) of the Act.
b. The warning and discharge
Although the Respondent had a published rule prohibiting
tardiness, that rule was not enforced. The absence of enforce-
ment is established by the admission of Jang that, prior to De-
cember 28, no employee had been disciplined for tardiness and
the stipulation of the parties that reflects multiple instances of
tardiness by employees in the parts department. Tardiness
played no role in the Respondent’s layoff decisions insofar as
Kevin Botkins, who had no tardies in November, was chosen
for layoff whereas employee Andrew Edwards, who was tardy
five times in November, and employee Samuel Dishun, who
was tardy seven times in November, were not laid off. Neither
Edwards, who was tardy 3 times in December, nor Dishun, who
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1084
was tardy 15 times, were disciplined on any occasion of tardi-
ness prior to December 28. There is no evidence that Dishun
had been tardy on December 28 when he was warned for tardi-
ness. The Respondent had, prior to that date, tolerated tardiness
and overlooked tardiness infractions.
The Respondent’s brief does not address the discharge of
Dishun. It is undisputed that there was no notice to the Union
regarding the warning issued to Dishun on December 28. On
December 29, when Dishun attempted to clock in after turning
in his dirty uniforms, Parts Manager Collins stated that he had
given Dishun a “written warning last night” and that he was 3
minutes late. Dishun explained, to no avail, that he had
“stopped to drop off my uniforms at the locker room.”
A unilateral change in enforcement policy violates the Act.
“[D]espite the Respondent’s written policy . . . the Respondent
had not previously enforced this requirement. . . .” Flambeau
Airmold Corp., 334 NLRB 165, 166 (2001). The Respondent’s
unprecedented enforcement of its previously unenforced tardi-
ness policy implemented a change in policy that affected em-
ployees’ terms and conditions of employment. The Union was
not informed that Dishun had been warned on December 28 or
otherwise given notice that the Respondent had changed the
terms of employment of employees by disciplining them for
tardiness. Although the Respondent does not purport to have a
progressive discipline system, the Respondent treated the warn-
ing issued to Dishun as a final warning, even though the warn-
ing does not state that the next offense of the previously unen-
forced prohibition of tardiness would result in termination. “If
the Respondent’s unlawfully imposed rules or policies were a
factor in the discipline or discharge, the discipline or discharge
violates Section 8(a)(5).” Great Western Produce, supra. The
unilateral implementation of enforcement of the tardiness pol-
icy resulted in the discharge of Dishun. I find that the dis-
charge of Samuel Dishun violated Section 8(a)(5) of the Act.
CONCLUSION OF LAW
By laying off and warning and discharging employees with-
out notice to and bargaining with the Union, the Respondent
has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and (5) and Section 2(6)
and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.4
In cases in which the General Counsel alleges an 8(a)(5) vio-
lation as a result of failure to bargain over layoffs in circum-
stances in which it was obligated to bargain, “then a full back-
pay remedy for the layoffs is in order.” Fast Food Merchan-
disers, 291 NLRB 897, 901 (1988). Likewise, when employees
are discharged pursuant to unlawfully changed rules or policies,
the discharged employees are entitled to reinstatement and a

4 Kevin Botkins died in October 2006, thus, obviating the remedy of
reinstatement. I shall recommend that his estate receive whatever back-
pay to which he would have been entitled.
full backpay remedy. See Great Western Produce, supra at
1008.
At the hearing, counsel for the Respondent argued that the
zipper clause constituted settlement of “all outstanding issues”
including the issues raised by the complaint. In its brief, coun-
sel for the Respondent, while maintaining that the Respondent
was not obligated to bargain over the layoff decision, argues
that any effects bargaining obligation was waived because, after
the Union had notice of the layoffs, “it never sought to engage
in effects bargaining” and it agreed to the definition of agree-
ment, the zipper clause, in which it agreed that, during negotia-
tions, it had the “opportunity to submit all items appropriate for
collective bargaining; that the Union expressly waives the right
to submit any additional items for negotiation during the term
of this Agreement. . . .”
Contrary to the foregoing argument, the decision to lay off
was made after the elections when Jang and her partners
“look[ed] at the work and decide[d] . . . at that time that the
best thing to do would be to cut one team out of the service
department.” Insofar as the Union did not learn of the layoffs
until after they had occurred, the Union was presented with a
fait accompli, and “[a] union is not obligated to request bar-
gaining over a matter that is already a fait accompli. See RCA
Corp., 296 NLRB 1175, 1179 (1989), and cases cited; Intersys-
tems Design Corp., 278 NLRB 759 (1986).” United Parcel
Service, 323 NLRB 593, 596 (1997). Although not obligated to
request bargaining, the Union, as soon as it learned of the lay-
offs, informed the Respondent of its obligation to bargain and
requested reinstatement of the affected employees. There was
no waiver.
A waiver must be clear and unmistakable. It is undisputed
that there was no discussion of the effect of the zipper clause
with regard to the outstanding unfair labor practice complaint
which had issued on August 23, 2006. “Any waiver of an em-
ployer’s backpay liability by a union cannot be lightly inferred,
however, but must be in ‘clear and unmistakable’ language. . . .
A wrap-up clause of this nature, which does no more than indi-
cate that the parties have embodied their full bargaining agree-
ment in the written contract, affords no basis for an inference
that the agreement contains an implied understanding over and
beyond those actually written into the contract.” Master Appli-
ance Corp., 164 NLRB 1189, 1190 (1967). See also United
States Gypsum Co., 155 NLRB 1216, 1219 (1965). The con-
tract reflects the agreement between the parties relating to the
employment relationship. It does not purport to alter statutory
rights or settle an outstanding unfair labor practice complaint.
The General Counsel, in August 2006, had issued a complaint
seeking an adjudication in vindication of the alleged infringe-
ment of statutory rights. The Respondent made no motion to
dismiss the complaint upon execution of the collective-
bargaining agreement in November 2006. Even if there were
some basis for claiming a purported waiver, there would remain
the question whether “under the facts in any given case would
such a waiver effectuate the policies of the Act?” Finishline
Industries, 181 NLRB 756, 759 (1970). The zipper clause does
not preclude an appropriate remedy for the unfair labor prac-
tices found herein.
BOB TOWNSEND/COLERAIN FORD 1085
The Respondent having unlawfully laid off Stanley Walton,
Kevin Botkins, and Harold Thornton and having unlawfully
warned and discharged Samuel Dishun, it must offer Stanley
Walton, Harold Thornton, and Samuel Dishun reinstatement
and make them and the estate of Kevin Botkins whole for any
loss of earnings and other benefits, computed on a quarterly
basis from their respective dates of termination to date of
proper offer of reinstatement or date of death, less any net in-
terim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
The Respondent must also post an appropriate notice.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended5
ORDER
The Respondent, Consolidated Equities Realty #3, LLC d/b/a
Bob Townsend/Colerain Ford, Cincinnati, Ohio, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Laying off and warning and discharging employees rep-
resented by District Lodge 34, International Association of
Machinists and Aerospace Workers, AFL–CIO in its automo-
tive technicians unit, service writers unit, and parts department
unit without giving notice to and bargaining with the Union.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Stanley
Walton, Harold Thornton, and Samuel Dishun full reinstate-
ment 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.
(b) Make Stanley Walton, Harold Thornton, Samuel Dishun
and the estate of Kevin Botkins whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against them in the manner set forth in the remedy section of
the decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful layoffs and warning and
discharge, and within 3 days thereafter notify Stanley Walton,
Harold Thornton, and Samuel Dishun in writing that this has
been done and that the layoffs and discharge will not be used
against them in any way.
(d) 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 re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored

5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cilities in Cincinnati, Ohio, copies of the attached notice
marked “Appendix.”6 Copies of the notice, on forms provided
by the Regional Director for Region 9, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since November
22, 2005.
(f) 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.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
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 lay off or warn or discharge any of you who are
represented by District Lodge 34, International Association of
Machinists and Aerospace Workers, AFL–CIO in the automo-
tive technicians unit, service writers unit, and parts department
unit without giving notice to and bargaining with the Union.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce any of you in the exercise of your rights guar-
anteed by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Order,
offer Stanley Walton, Harold Thornton, and Samuel Dishun full
reinstatement to their former jobs or, if those jobs no longer

6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1086
exist, to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously en-
joyed.
WE WILL make Stanley Walton, Harold Thornton, Samuel
Dishun, and the estate of Kevin Botkins whole for any loss of
earnings and other benefits suffered as a result of the unlawful
action taken against them, with interest.
WE WILL, within 14 days from the date of the Board’s Order
remove from our files any reference to the unlawful layoffs and
warning and discharge, and WE WILL, within 3 days thereafter
notify Stanley Walton, Harold Thornton, and Samuel Dishun in
writing that this has been done and that the layoffs and dis-
charge will not be used against them in any way.
CONSOLIDATED EQUITIES REALTY #3, LLC D/B/A BOB
TOWNSEND/COLERAIN FORD