Bachrodt Chevrolet Co.

National Labor Relations Board - Board Decisions

Dec 3, 1970

186 N.L.R.B. 1035 (N.L.R.B. 1970)

BACHRODT CHEVROLET CO. 1035
Bachrodt Chevrolet Co. and Lodge 1096, International
Association of Machinists and Aerospace Workers,
AFL-CIO. Case 38-CA-811
December 3, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On July 17, 1970, Trial Examiner Harold X.
Summers issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief,' and the General
Counsel filed a brief in support of the Trial Examin-
er's Decision, and also filed limited exceptions thereto
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings,2 conclusions, and recommendations of the
Trial Examiner as modified herein.
The Trial Examiner found, and we agree, that the
Respondent, as of November 10, 1969, took over and
operated the predecessor's body shop as an integral
part of its operations and that the employees working
therein were among its employees.3 We further find,
however, that, assuming, arguendo, the Respondent
did not purchase the body shop from the predecessor
employer, its status as a successor employer would not
have been affected because elimination of the body
shop was not sufficient to affect the Union's status as
bargaining representative. In so finding, we note that
the record clearly shows that the Respondent took
over 22 of the 23 or 24 employees in the bargaining
unit, including the 6 in the body shop. Thus, it follows
that, even without the latter 6, the Respondent would
have still retained 16 of the predecessor employer's 23
or 24 employees.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner, as modified herein,
and hereby orders that the Respondent, Bachrodt
Chevrolet Co., Freeport, Illinois, its officers, agents,
successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order, as so
modified.
i The Respondent has requested oral argument The request is hereby
denied inasmuch as the record , the exceptions , and the briefs adequately
present the issues and positions of the parties
2 We find without merit the Respondent 's allegations of bias on the part
of the Trial Examiner There is no basis for finding that bias or partiality
existed only because the Trial Examiner resolved important factual
conflicts in favor of General Counsel's witnesses As the Supreme Court
has stated. " [Tlotal rejection of an opposed view cannot of itself
impugn the integrity or competence of a trier of fact" NLRB v
Pittsburgh Steamship Co, 337 U S 656, 659 (1949) Moreover , as it is the
Board's established policy not to overrule a Trial Examiner's resolutions as
to credibility except where , as is not the case here, the clear preponderance
of all the relevant evidence convinces us that the resolutions were incorrect,
we find, contrary to the Respondent 's contention , no basis for disturbing
the Triaf Examiner's credibility findings Standard Dry Wall Products, inc,
91 NLRB 544, enfd 188 F 2d 362 (C A 3)
For the reasons set out in the dissenting opinion in William J Burns
International Detective Agency, Inc, 182 NLRB No 50, Member Jenkins
would not require the Respondent here to be bound by the agreement
between the predecessor employer and the Union.
3 Although the Trial Examiner found that, on or about November 15,
1969, the Respondent ceased to operate the predecessor employer's body
shop and that these employees were taken over by an entity completely
unconnected with the Respondent , he nevertheless included "bodymen"
and "body shop" in his redefined unit description Accordingly, we shall
delete such words from the unit description and the third conclusion of
law The correct unit description is as follows
All full-time and regular part-time employees in Respondent 's service
department (for example , mechanics and their helpers and apprentices,
wash boys, car jockeys, errand boys, and janitors), but excluding sales,
parts, and office employees , and further excluding the manager and
assistant manager of the service department and all other supervisors
within the meaning of the Act
TRIAL EXAMINER'S DECISION
HAROLD X . SUMMERS, Trial Examiner : In this proceed-
ing, the General Counsel of the National Labor Relations
Board (herein called the General Counsel and the Board,
respectively) issued a complaint ' alleging that Bachrodt
Chevrolet Co.2 (herein Respondent) had engaged in and
was engaging in unfair labor practices within the meaning
of Section 8 (a)(5) and ( 1) of the National Labor Relations
Act (the Act). The answer to the complaint admitted some
of its allegations , denied others , and disclaimed knowledge
as to still others; in effect , it denied the commission of any
unfair labor practices. Pursuant to notice, a hearing was
held before me at Freeport, Illinois , on April 15, 1970; all
parties were afforded full opportunity to call and examine
and to cross-examine witnesses, to argue orally, and
thereafter to submit briefs.
Upon the entire record in the case , including my
evaluation of the witnesses based upon my observation of
their demeanor, I make the following:
i The complaint was issued on February 12, 1970. The unfair labor
practice charge initiating the proceeding-wherein the charged party was
named as "Sunnyside Motors," a name formerly used by Respondent-was
filed on November 21, 1969 The answer admits that the charge, addressed
to Sunnyside Motors , was served on Respondent
2 This name is as corrected by amendment at the hearing
186 NLRB No. 151
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. JURISDICTION
Respondent is an Illinois corporation with office and
place of business located at Freeport, Illinois, where it has
been engaged, on and since November 10, 1969, in the
business of the retail and wholesale selling and servicing of
automobiles, parts, and accessories. Respondent has a
reasonable expectation of sales and service the gross
income from which will exceed $500,000 per year, including
the year commencing November 10, 1969; and of the
annual purchase and receipt of automobiles and trucks of a
value in excess of $50,000 which will be transported to the
Freeport facility directly from States other than the State of
Illinois.
Respondent is an employer engaged in commerce within
the meaning of the Act.
II. THE UNION
The Charging Party, Lodge 1096, International Associa-
tion of Machinists and Aerospace Workers, AFL-CIO
(herein called Lodge 1096), is an organization in which
employees participate and which exists for the purpose, in
part, of dealing with employers concerning grievances,
labor disputes, wages, rates of pay, hours of employment,
and conditions of work. I find that it is a labor organization
within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Setting
During 1955 (and for an unspecified period prior
thereto), the premises now occupied by Respondent were
occupied by a Chevrolet dealer, George M. Monroe, doing
business as Monroe Chevrolet Sales (hereinafter referred to
as Monroe). On September 9, 1955, the then mayor of
Freeport conducted an election among certain employees3
of Monroe to determine whether or not they wished to be
represented in collective bargaining by Lodge 1096. A
majority of the votes cast-7 to 3 in an electorate of
10-voted in favor of such representation. Thereafter, the
working conditions of these employees were fixed by a
series of collective-bargaining agreements between Monroe
and Lodge 1096. The first such agreement was a 2-year
contract, effective by its terms from November 4, 1955, to
November 4, 1957. Subsequently, there were 1-year
contracts or extensions thereof, one or another contract or
extension thereafter covered the entire period of Monroe's
further existence.
In the summer of 1960, Zimmerman Chevrolet, Inc.,
(herein Zimmerman), took over from Monroe, and,
thereafter, there were a series of collective-bargaining
agreements between Zimmerman and Lodge 1096. Each of
these agreements, by its terms, was a 1-year contract calling
for an automatic year-to-year extension in the absence of
notice to the contrary by one or the other of the parties.
The last such contract, the parties to which were Lodge
3 According to the collective-bargaining contract which eventuated-see
infra- the employees involved in the election consisted of
1096 on the one hand, and Zimmerman, "its successors and
assigns," on the other, became effective, by its terms, on
February 8, 1968, and was to remain in force
until February 8, 1969, and thereafter from year to year
unless written notice is given by either party hereto to
the other on or before sixty (60) days prior to the 8th
day of February, or sixty (60) days prior to the 8th day
of February of any subsequent year.
Prior to the "notice" date stipulated in this
agreement-i.e., 60 days before February 8,
1969-Zimmerman's employees met to consider what
changes, if any, they would seek in the ensuing contract,
but they decided to ask for none. Thereafter, neither Lodge
1096 nor Zimmerman gave any written 60-day notice, and
(I find) the contract automatically renewed itself for one
year on February 9, 1969.
B. Enter Respondent
Around the middle of August 1969, Robert Zimmerman,
president of Zimmerman, was awarded a Ford dealership
franchise in Cedar Rapids, Iowa, and he became interested
in disposing of his Freeport Chevrolet operation.
One of Zimmerman's competitors for a number of years
prior to the period with which this case is concerned was
Lou Bachrodt Chevrolet Co., an Illinois corporation
located at Rockford, Illinois, approximately 30 miles from
Freeport. Louis Bachrodt was its president and managing
agent, and, at least since 1963, his son, Louis C. Bachrodt
III, was associated with the enterprise on a full-time basis.
Robert Zimmerman and Louis Bachrodt III met on or
about September 10, 1969, for a preliminary discussion
about the sale of the Zimmerman operation. The ensuing
negotiations culminated, on October 20, in an agreement,
which agreement was memorialized by a "Buy and Sell
Agreement" between Zimmerman ("Seller") and Lou
Bachrodt Chevrolet Co. ("Buyer") dated October 28.
The Agreement, among other things, called for the sale to
Buyer of Seller's new and demonstrator automobiles and
trucks on hand or on order, new parts and accessories
which met specified standards, miscellaneous inventories of
usable materials, machinery and shop equipment, and
miscellaneous usable supplies-all at prices the method for
establishing which were set forth. Leases on all Seller's
properties were described, and Buyer agreed, as of the date
of transfer of possession, to take over the liabilities
thereunder. Work in process at the time of transfer of
possession was to be completed by Buyer at Seller's
expense. Provisions were included for the prorating of
taxes, insurance, and other items. And Seller agreed that,
for a period of 5 years, neither it nor its president would
engage in the operation of an automobile dealership in the
county in which Freeport was located.
The transfer of title to and the delivery of possession of
assets were to take place on or before November 10, and
payment of the total purchase price was to be made no later
than November 30.
Under the terms of the Agreement, Seller was to provide
[A]l] employees of [Monroe] with the exception of office employees,
supervisory employees and salesmen
BACHRODT CHEVROLET CO 1037
a copy of each contract or labor agreement to which it was
party,4 but (it was specified) Buyer was to assume no
obligations thereunder except as to the current classified
telephone directory contract; a contract under which
automated inventory services were received; a pension plan
between Seller and its employees, underwritten by a named
insurance company; the current employees' group life and
health insurance plan, underwritten by another insurance
company; and the current uniform-laundering service
contract
By specific provision in the Agreement, no used cars or
trucks were intended to be sold thereby, nor were Seller's
accounts payable5 or accounts receivable.6 There was no
mention of "good will" in the Agreement; nor was there
any undertaking by Buyer to "take over" Seller's employ-
ees.
The entire transaction, by its terms, was made subject to
approval by the Chevrolet Motor Division of General
Motors Corporation and to the grant to Buyer "or its
nominee" of an exclusive franchise for the sale of Chevrolet
Motor Division products in Freeport.
The Buy and Sell Agreement having been executed, the
parties thereupon took steps looking toward its implemen-
tation Prior to November 10, Lou Bachrodt Chevrolet Co.,
designated as its nominee in the transaction a new entity
then to be known as "Sunnyside Motors," headed by Louis
Bachrodt III; Robert Zimmerman began moving the used
vehicles to Iowa; and, assurances of the receipt of a
dealership franchise having been given the new operation,
the final steps leading to the transfer of assets were taken.
On Thursday, November 6, Robert Zimmerman called
his employees together and informed them of the change in
ownership which would take place over the weekend. Next
day, representatives of the new agency passed out job
application forms among Zimmerman's employees, inviting
them to file for employment.
Zimmerman's last day of operation was Saturday,
November 8. Respondent, under the name "Sunnyside
Motors," began its operating existence on Monday,
November 10; and, on the same day, it released a publicity
statement concerning the change. That morning, sales and
service operations were performed by employees of the new
entity, and new promotional material and billheads and
other stationery were installed.
By Wednesday, November 12, "Sunnyside Motors" had
become "Bachrodt Chevrolet Co.," and application for a
corporate charter was filed.? Since that date, Respondent,
with Louis Bachrodt III as its president, managing head,
and principal stockholder, has operated under its present
name.
4 Bachrodt was in fact shown a copy of the latest collective-bargaining
agreement between Zimmerman and Lodge 1096
5 Except for notes payable on new cars, allowances for which had been
made in the price formula
6 Buyer undertook to accept payments on sums due Seller for a period
of 90 days after the transfer date and to deposit the funds to Seller's credit
Also, Buyer undertook to furnish space and facilities, for the 90-day
period, to an employee of Sellers for the purpose of servicing Seller's
remaining accounts
C. Sequence of Events Surrounding Respondent's
Takeover
As Respondent began operations on November 10, it
performed the same functions, at the same locations,8 as
Zimmerman had on Saturday the 8th. Although there was a
complete turnover among top management and although
internal recordkeeping systems were overhauled, Respon-
dent retained Zimmerman's sales manager and four of its
five salesmen, the only one of Zimmerman's clerical
employees alluded to in this record, and its parts
department employee. As for the employees with whose
bargaining rights this case is concerned, Respondent
employed 17 individuals in its service department proper
(including the service manager and his assistant) and 8
individuals in the body shop (including the shop manager
and his assistant), all of whom had most recently been
employees of Zimmerman .9
As for employee working conditions in the Respondent's
operation on and after November 10, they were the same as
those prevailing under Zimmerman, with the exceptions
noted herefnbelow.
But, meanwhile, an exchange of correspondence was
taking place. Agents of Lodge 1096 had become aware of
the imminence of an alteration in the dealership on or
about November 7. On that date, they sent a letter to Lou
Bachrodt III:
Mr Lou Bachrodt III
Lou Bachrodt Chevrolet
2000 Christina
Rockford, Illinois 61100
Dear Mr. Bachrodt:
It is our understanding, based on our talk with Mr.
Robert Zimmerman this morning, that you are
assuming ownership of this automobile agency this
coming Monday, November 10, 1969.
In view of the fact that Zimmerman's Chevrolet Sales
has an existing labor agreement with Lodge No. 1096,
International Association of Machinists and Aerospace
Workers (AFL-CIO), which is in effect until February
8, 1970, we are hereby advising you that it is our
position that said labor agreement, in all its terms and
provisions, is equally binding on you as it was on Mr.
Robert Zimmerman.
Be further advised that we are prepared to meet with
you, as soon as possible, to review with you whatever
sections and/or articles of said labor agreement on
which you may have questions. Your kind attention in
this matter is sincerely appreciated.
With best wishes for acontinuing good relationship,we are
Yours truly,
/s/ Dominic F. Berta
Dominic F. Berta
Special Representative
7 The charter was issued several weeks later
" The main offices and showroom at 101 West Spring Street, with
service parking lot and used car lot, a new car storage lot on the west side
of Freeport the "bullpen" on Jackson Street, for parking older used cars
being reconditioned and on which was a parts warehouse, and the body
shop on Southwest Avenue
'> All but one or two of Zimmerman's employees had filled out
applications for employment with Respondent, and all who had applied
were hired
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
/s/ Lloyd A. White
Lloyd A. White
Business , Representative
They received a reply dated November 10:
International Association of Machinists
Freeport Lodge No. 1096
225 West Main Street
Freeport, Illinois 61032
Attn: Mr. Dominic F. Berta
Mr. Lloyd A. White
Re: Zimmerman Chevrolet, Inc.
Gentlemen:
This office represents Mr. Louis Bachrodt, III to whom
you addressed a letter on November 7, 1969 with regard
to your conversation with Mr. Robert Zimmerman of
Zimmerman Chevrolet, Inc.
Mr. Louis Bachrodt, III did not assume ownership of
Robert Zimmerman's Automobile Agency on Novem-
ber 10, 1969.
However, I do wish to advise you that Lou Bachrodt
Chevrolet Co., an Illinois corporation, did purchase
some of the assets of Zimmerman Chevrolet as of
November 10, 1969. Under the terms of the purchase
agreement, Lou Bachrodt Chevrolet Co. did purchase
certain physical assets and stock of parts and accesso-
ries of Zimmerman Chevrolet, Inc. Lou Bachrodt
Chevrolet Co. did not purchase any accounts receivable
nor any used car inventory. Lou Bachrodt Chevrolet
did not assume any debts or liabilities of Zimmerman
Chevrolet Co. and specifically did "not assume any of
the obligations of any labor agreements."
Lou Bachrodt Chevrolet Co. does not know if any of the
former employees of Zimmerman Chevrolet, Inc. are
represented by the International Association of Ma-
chinists or any other union, and, accordingly, can not,
therefore, enter into collective bargaining negotiations
with your union or any other union at this time.
Very Truly yours,
/s/ Francis E. Hickey
Francis E. Hickey
for Miller, Hickey, Collins & Close
Thereupon, on November 12, Lodge 1096 sent the
following letter:
Mr. Francis E. Hickey, Attorney
Miller, Hickey, Collins & Close
Rockford News Tower
Rockford, Illinois 61104
Re: Zimmerman Cheverolet, Inc.
Dear Mr. Hickey
Your letter of November 10, 1969 to the undersigned
did not give us the answer to the question and statement
we made in our letter to Mr. Louis Bachrodt on
November 7, 1969.
We again state to you very clearly that Mr. Bachrodt
did, in fact, take over and is presently operating the
business Mr. Zimmerman disassociated himself from as
of 12:00 midnight on November 9, 1969. We further
request that Mr. Bachrodt to meet with us in regard to
the existing labor agreement.
We further ask you, as the attorney for Mr. Bachrodt, to
schedule a meeting with us, as soon as possible, to
negotiate any and all matters pertaining to wages, rates
of pay, hours of work and other conditions of
employment as they apply to our membership em-
ployed at your client's firm in Freeport, Illinois.
Your prompt attention in this matter is respectively
requested.
Yours truly,
/s/ Dominic F. Berta
Dominic F. Berta
Special Representative
/s/ Lloyd A. White
Lloyd A. White
Business Representative
Which, in turn , brough the following response dated
November 14:
International Association of Machinists
Freeport Lodge No. 1096
225 West Main Street
Freeport, Illinois 61032
Att: Mr. Dominic F. Berta
Mr. Lloyd A. White
Re. Zimmerman Chevrolet, Inc.
Gentlemen:
We acknowledge receipt of your letter of November 12,
1969 with regard to the above matter.
In my letter addressed to you on November 10, 1969, I
stated as follows:
However, I do wish to advise you that Lou
Bachrodt Chevrolet Co., an Illinois corporation,
did purchase some of the assets of Zimmerman
Chevrolet as of November 10, 1969. Under the
terms of the purchase agreement, Lou Bachrodt
Chevrolet Co. did purchase certain physical assets
of stock of parts and accessories of Zimmerman
Chevrolet Inc. Lou Bachrodt Chevrolet Co. did
not purchase any accounts receivable nor any
used car inventory. Lou Bachrodt Chevrolet did
not assume any debts or liabilities by Zimmerman
Chevrolet Co. and specifically did not "assume
any of the obligations of any labor agreements."
May we emphasize that Lou Bachrodt Chevrolet Co.,
did not "take over and is presently operating the
business Mr. Zimmerman disassociated himself from as
of 12:00 midnight November 9, 1969."
I regret to inform you that Lou Bachrodt Chevrolet
does not propose to meet with your union to negotiate
any and all matters regarding wages, rates of pay, etc.
Lou Bachrodt Chevrolet Co. does not know of its own
knowledge if any of the former employees of Zimmer-
man Chevrolet, Inc. are represented by the Internation-
al Association of Machinists or any other union. Should
you be of the opinion that the employees of Lou
Bachrodt Chevrolet Co. in Freeport do desire to be
represented by your union or any other union, there is
BACHRODT CHEVROLET CO.
an orderly procedure established by the National Labor
Relations Act for an election to determine what union,
if any, the employees wish to be represented by in
collective bargaining negotiations.
Very truly yours,
/s/ Francis E. Hickey for
Miller, Hickey, Collins &
Close
Meanwhile, at a meeting with employees held on
Monday, the 10th, Bachrodt III announced the installation
of a number of working conditions which differed from
those which Zimmerman had applied to its employees:
(1) Respondent (he said) was adopting a new method of
computing wages of service department mechanics, who
worked on an incentive basis. Whereas, irrespective of the
length of time a mechanic worked on a job, Zimmerman
had paid him 50 percent of the labor cost per hour ($8)
charged the customer for the number of hours ascribed to
the job in the so-called "Chevrolet manual," Respondent,
under its newly-installed plan, would pay him a flat $3.75
per hour, for the number of hours that the so-called
"Chilton manual" assigned to thejob.
(2) There would be a change in the method of computing
the mechanics' minimum pay per hour: Under Zimmerman,
each mechanic was guaranteed a minimum wage for hours
actually worked based on 85 percent of his average hourly
earnings during the previous calendar quarter; under
Respondent, the guaranteed minimum would be an amount
agreed upon between the individual mechanic and
Respondent.
(3) Under Zimmerman, employees were permitted to take
2 hours off with pay on Good Friday afternoon if they
returned to work to finish out the day; under Respondent,
it was announced, they could be off, with pay, for the 8
working hours between noon on Good Friday and noon
next day.
(4) As for the amount of hourly pay given for holiday time
off in general, under Zimmerman it had been based upon
the employees average hourly pay for the past quarter;
now, under Respondent, it was to be based upon the
individual employee's guaranteed minimum, which, in
turn- supra -was fixed by individual bargaining.
(5) Saturday morning work, voluntary under Zimmer-
man, was to be mandatory upon any individual assigned to
work on a given Saturday.
(6) While the employees would receive vacation pay for
work performed under Zimmerman, there would no longer
be vacations with pay.
On or about November 15, another "change" occurred:
(7) Respondent ceased to operate the body shop. The
shop itself, its operation, and its employees were taken over
by Zimmerman Cadillac and Olds,i0 an entity completely
unconnected with Respondent.
In connection with none of these changes did Respon-
dent give advance notice to or engage in any consultations
with Lodge 1096.
Time passed, and a number of changes took place in
10 Run by a former officer of Zimmerman, but otherwise unrelated to
that organization
" Specifically, the method of computing mechanics' incentive pay per
job, the manner in which the guaranteed minimum pay for each hour
worked was now arrived at, the change in time off for Good Friday, the
1039
Respondent's work force. Subsequent to November 10, a
new sales manager, a new office manager, and a new
service department manager and an assistant manager
displaced the ones inherited from Zimmerman. As earlier
noted, the eight body shop employees (including supervi-
sors) were transferred to another employer on November
15. Between November 10 and the date of the instant
hearing, the employment of 9 of the 17 service department
ex-Zimmerman employees were terminated. (No one was
discharged for cause; one man was laid off; the rest either
were given jobs at Lou Bachrodt Chevrolet of Rockford or
voluntarily quit. Included among those who quit were the
service manager and his assistant; the first position was
filled by the promotion of one of the ex-Zimmerman
mechanics, and the other was filled by Zimmerman's
former parts department employee.) Only one individual
was hired to replace those who had left. Therefore, as of the
date of the hearing, Respondent had no body shop
employees and had 10 service departments employees,
including the manager and his assistant.
D. Discussion-Conclusions
The General Counsel, regarding Respondent as the
"successor" to Zimmerman in the "same employing
industry," contends that Zimmerman's obligation to
bargain with Lodge 1096 for the service department and
body shop employees and its obligation to honor the last-
executed contract covering their working conditions were
inherited by Respondent; that Respondent's refusal to
recognize and deal with Lodge 1096 as representative of
such employees and its refusal to be bound by the contract
constituted an unlawful refusal to bargain under the Act;
and that its institution of certain changes in working
conditions,ii effectuated without notice to and consultation
with Lodge 1096, constituted separate incidents of unlawful
refusals to bargain.
(The General Counsel does not allege that Respondent,
independently of the above conduct, interfered with,
restrained, or coerced employees in the exercise of their
self-organizational rights, or that it discriminated with
respect to any employees' working conditions to encourage
or discourage union membership. He has presented no
evidence to the effect that agents of Respondent enter-
tained any animus against unions in general or Lodge 1096
in particular. Nor does he raise as an issue here any alleged
breach of contract by Respondent per se.)
Respondent argues that, although it did purchase some of
the assets of Zimmerman, it did not purchase others, such
as the used cars and the accounts receivable, that it did not
assume liability for Zimmerman's accounts payable, and
that it did not purchase the body shop (which, allegedly,
employed about one-half the individuals in the putative
bargaining unit); therefore, it contends, it was not a
"successor" to Zimmerman within the meaning of the
relevant precedents. In addition, it defends its refusal to
bargain with Lodge 1096 upon the grounds (1) that it had
no reason to believe that Lodge 1096 represented a majority
of the employees in an appropriate bargaining unit and (2)
amount of hourly pay given for holiday time off, and the disposition of the
body shop operation The General Counsel does not attack Respondent's
alteration of the voluntary nature of Saturday work or the elimination of
vacation benefits
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that there is no evidence that that organization in fact
represented any such majority.
The contention of Respondent that, despite its operation
of the body shop for 5 days, it did not purchase that shop
from Zimmerman-in counsel's words, the body shop "was
sold directly by Zimmerman to Russell King [body shop
manager and predecessor to or alter ego of Zimmerman
Cadillac and Olds]"-bears upon two issues: (1) the
composition of the appropriate bargaining unit here, and
(2) the failure of Respondent to discuss with Lodge 1096 the
"transfer-out" of the body shop operation. Therefore, the
contention will be taken up at this time.
Counsel for Respondent represented that "Mr Zimmer-
man was never clear with us, really. If you will read the Buy
and Sell Agreement [you will see that] they hired two
independent appraisers to come in and appraise the items.
When they came in, as I understand it, the body shop was
already sold or in the process of being sold by Zimmerman
to King." And, noting that "we didn't end up with it," he
points out that the bill of sale made no mention of the body
shop.
Respondent's president testified that, in his negotiations
with Zimmerman, "the whole body shop thing was a
confusing issue" -he was "not sure" if the body shop was
excluded from the sale; but he was "positive" that he did
not buy the body shop and then sell it to King. Asked if,
during the negotiations, he had any reservations, mental or
otherwise, about the fact that the body shop was included
in the transaction, he replied in the affirmative: during the
discussions , "it was understood" that Russell King, then
body shop manager, was trying to raise money to buy the
operation-Respondent was "in the middle." In fact, he
testified, Respondent's takeover on November 10 "might
have been more of a convenience to Bob Zimmerman than
to anybody . . . At that time Bob and I had severed
negotiations as far as the body shop was concerned,
because I had to be in a position to say, `Bob, go ahead and
sell the body shop.' "
The Buy and Sell Agreement covers, among many other
things, "body and paint materials," and all equipment
located "at the body shop" as well as elsewhere. The
described leases-which Seller represented to exist and
which Buyer agreed to assume-included the month-to-
month lease "on the body shop." As for the provision
concerning work in process- supra - there was no
exclusion of bodywork; nor was the body shop excluded in
any other provision in which an exclusion would normally
be found if indeed there was any such understanding-for
example, in the warranty against title-clouds.
Moreover, in its correspondence with Lodge 1096
extending from November 7 through 14, Respondent,
disclaiming successorship to Zimmerman in other respects,
made no representation that it had not taken over the body
shop operation.
As a matter of fact, it did, on the 10th, take over the
operation, as above described. It billed work done in its
own name. Insofar as the public was concerned, it
continued to operate the body shop along with other ex-
Zimmerman operations.
12 Since November 15, bodywork on new cars covered by warranty has
been sent to other body shops, and the charges have been transmitted to
Yet, it gave up the shop 5 days later . And (although the
body shop is neither included in nor excluded from the bill
of sale), the credited testimony demonstrates that Respon-
dent never paid Zimmerman for the operation. Since
November 15, Respondent has neither offered to perform
nor has it performed bodywork on retail basis.12
The explanation, it seems to me, is simple. During the
discussions leading up to the execution of the sales
agreement, Bachrodt's attention was called to the fact that
Body Shop Manager King wanted to buy the shop and was
trying to acquire the necessary capital; Bachrodt, whose
desire for the dealership was not necessarily conditioned
upon his acquisition of this part of the operation, orally
agreed to take or not to take the body shop depending upon
King's success in raising funds; and, on November 10, King
not yet successful, Respondent took over the body shop
along with the rest of the assets purchased, in accordance
with the terms of the Buy and Sell Agreement. But no
appraisal of properties had yet been made, and no price set,
when Zimmerman informed Respondent that the sale to
King was now ready for consummation, and Respondent
honored Bachrodt's prior (verbal) agreement to turn over
the operation. Thus, we account for the "confusion" during
the negotiations, Respondent's takeover and subsequent
transfer out, the fact that Respondent did not pay
Zimmerman for the body shop (and was not paid by King
for it), and the failure of the bill of sale (executed December
26) to mention it.
I find, therefore, that as of November 10, 1969,
Respondent took over and operated Zimmerman's old
body shop as an integral part of its operation and that the
bodymen working at the shop were among its employees.
There is no real dispute as to the composition of a unit of
employees appropriate for purposes of collective bargain-
ing. The complaint describes that unit as consisting of
All mechanics, bodymen, helpers, apprentices, lubrica-
tion men, washers, common laborers, janitors, errand
boys, and all other employees under the supervision of
the service manager employed at Respondent's Free-
port, Illinois facility, excluding office employees,
salesmen, and all other employees, and all supervisors
as defined in the Act,
a description which is obviously an updated version of that
which appears in the collective-bargaining agreement
which (I have found) renewed itself for one year on
February 9, 1969, which description itself is an updated
version of the one which served to describe the body of
eligible voters in the 1955 election among Monroe's
employees. Respondent, in its answer, denied the appropn-
ateness of said unit, the denial being based on assertions
that (1) there had been no Board finding that such a unit of
Respondent's (as opposed to Monroe's or Zimmerman's)
employees was appropriate, and (2) the description
included the bodymen whereas Respondent has no
bodymen.
On the basis of the testimony herein, in the light of the
stipulations and concessions of the parties, and leaving
aside for the moment the obligation of Respondent to
bargain with Lodge 1096 as representative of such a group,
the Chevrolet Motor Division
BACHRODT CHEVROLET CO. 1041
I find that the unit described by the complaint is in fact
appropriate for collective-bargaining purposes; and it is
only for the sake of further clarity that I here redefine the
unit which I find to be appropriate:
All fulltime and regular parttime employees in Respon-
dent's service department (for example, mechanics and
bodymen and their helpers and apprentices, wash boys,
car jockeys, errand boys, and janitors) but excluding
sales, parts, and office employees and further excluding
the manager and assistant manager of the service
department and of the body shop and all other
supervisors within the meaning of the Act.
This is another of those cases which involve the question
of whether or not, upon a change of ownership, there is a
"substantial continuity of the employing industry." Clearly,
in this matter-where the successor employer continued to
operate in the same business as its predecessor, with
substantially the same work force 13-there was such a
continuity; and clearly, in such a situation, the successor
employer steps into the shoes of its predecessor with respect
to the bargaining obligation created by the Act.14
Zimmerman had been obligated to bargain with Lodge
1096 as its employees' agent at the time of the transfer; 15
now, I find, Respondent was likewise obligated.16
In sum, I find and conclude that Respondent, in failing
and refusing to recognize and to bargain with Lodge 1096
on and after November 10, 1970, unlawfully refused to
bargain, and is refusing to bargain, within the meaning of
the Act.
It follows and I find that, by changing certain working
conditions -the method of computing mechanics' incen-
tive pay per job, the manner of arriving at the guaranteed
minimum pay for each hour worked, the number of hours'
pay given for Good Friday time off, the amount of hourly
pay to be paid for holiday time off, and the elimination of a
portion of the bargaining unit by a transfer out of the body
shop 17 -without notice to or consultation with Lodge
1096, Respondent acted in derogation of its duty to bargain
collectively within the meaning of the Act.
As for the General Counsel's allegation that Respon-
dent's refusal to honor the unexpired collective-bargaining
agreement was itself violative of the Act, a quartet of
recently issued Board decisions18 is diapositive. In these
cases, the Board, in reliance on the Supreme Court's
expression in John Wiley & Sons v. Livingston 19 of the
13 Respondent took over all but one of Zimmerman's supervisors, all of
its salesmen, its parts man, and 22 of the 23 or 24 employees in the
bargaining unit-a figure which includes the 6 nonsupervisory bodymen
Respondent introduced evidence of subsequent changes, but these changes,
such as might have been made had Zimmerman continued to operate the
business, do not affect the legal picture as of the time of takeover
14 N L R B v Albert Armato and Wire & Sheet Metal Specialty Co, 199
F 2d 800 (C A 7), NLRB v Lunder Shoe Corp, 211 F 2d 284 (C A I),
N L R B v Blair Quarries, Inc, 152 F 2d 254) (C A 4), N L R B v Zayre
Corp, 424 F 2d 1 159 (C A 5) NLRB v Kiddie Kover, 105 F 2d 179, 188
(C A 6), N L R B v McFarland, 306 F 2d 219 (C A 10), cruse Motors,
Inc, 105 NLRB 242, Johnson Ready Mix Co, 142 NLRB 437, Payless Drug
Stores, 150 NLRB 518, Randolph Rubber Co, inc, 152 NLRB 496
15 Shamrock Dairy, Inc, 119 NLRB 998, 1000-02
16 Respondent denied the allegation in the complaint that Lodge 1096
had been and still was the representative of the involved employees In
view of the existence of the latest-unexpired--collective-bargaining
contract. I find that it was Shamrock Dairy, Inc, supra, and N L R B v
Armato, supra, 803 "There is no reason to believe that the employees will
perspective in which a successor employer 's obligations to
honor the provisions of a collective -bargaining agreement
negotiated by his predecessor must be viewed, established
the principle that , absent unusual circumstances , the Act
imposes upon a successor employer the obligation to take
over and honor a collective -bargaining agreement negotiat-
ed on behalf of the employing enterprise by the predecessor
employer I here perceive no unusual circumstances
dictating a contrary result; consequently, I find and
conclude that Respondent's failure and refusal to take over
and honor the unexpired collective -bargaining agreement
above referred to constituted an unlawful refusal to bargain
within the meaning of the Act.
Upon the foregoing factual findings and conclusions, I
come to the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Lodge 1096 is a labor organization within the
meaning of Section 2(5) of the Act.
3. All fulltime and regular parttime employees in
Respondent's service department (for example, mechanics
and bodymen and their helpers and apprentices, wash boys,
car jockeys, errand boys, andjanitors), but excluding sales,
parts, and office employees, and further excluding the
manager and assistant manager of the service department
and of the body shop and all other supervisors within the
meaning of the Act, constitute and at all times material
herein constituted a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
4. Lodge 1096, on and since November 10, 1969, has
been and is the exclusive representative of all employees in
the aforesaid bargaining unit within the meaning of Section
9(a) of the Act.
5. On and after November 10, 1969, at least until
February 8, 1970, there has been in effect a collective-
bargaining agreement covering the working conditions of
the employees in the aforesaid bargaining unit.
6. On and since November 10, 1969, Lodge 1096 has
requested Respondent to recognize and bargain with it over
the working conditions of the employees in the aforesaid
bargaining unit and to take over the aforesaid collective-
bargaining agreement and to honor its terms.
change their attitude merely because the identity of their employer has
changed" Also, see Valleydale Packers, Inc, 162 NLRB 1486, 1490-91,
wherein the Trial Examiner, with Board approval, said that "a successor
employer is obligated to bargain with a union which is the exclusive
representative of the employees acquired from the predecessor , absent a
reasonable and good - faith doubt that such union represents a majority of
the employees [citing cases ] This is so whether such representative status is
evidenced by a Board certification or by recognition and the existence of a
collective -bargaining contract " Moreover, it should be noted here that,
although Respondent contended that it entertained a good-faith doubt as
to the majority status of Lodge 1096's representation claim, it offered no
evidence in support of the contention
11 See Martin Marietta Corporation, 159 NLRB 905
18 William J Burns Detective Agency, 182 NLRB No 50, Kota Division
of Dura Corp, 182 NLRB No 5I, Travelodge Corp et at, 182 NLRB No
52, and Hackney Iron & Steel Co, 182 NLRB No 53 Also see Ranch-Way,
Inc, 183 NLRB No 116 (decided June 26, 1970)
i9 376 U S 543
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7. On and since November 10, 1969 Respondent has
denied and continues to deny Lodge 1096's requests as
described in paragraph 6, above.
8. On or about November 10, 1969, Respondent altered
certain working conditions of the employees in the
aforesaid bargaining unit-the method of computing
mechanics' incentive pay per job, the manner of arriving at
the guaranteed minimum pay for each hour worked, the
number of hours' pay given for Good Friday time off, and
the amount of hourly pay to be paid for holiday time
off-and, on or about November 15, 1969, Respondent
eliminated a portion of the aforesaid bargaining unit by a
transfer out of the body shop, all without notice to or
consultation with Lodge 1096.
9. By the conduct described in paragraphs 7 and 8,
above, Respondent has refused to bargain and is refusing to
bargain collectively with the representative of its employees
within the meaning of Section 8(a)(5) of the Act; and,
thereby, has interfered with, coerced, and restrained
employees in the exercise of the rights guaranteed them in
Section 7 of the Act, in violation of Section 8(a)(1) thereof.
10. The aforesaid acts are unfair labor practices
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and to take certain
affirmative action in order to effectuate the policies of the
Act.
I shall recommend, among other things, that Respondent
be ordered to bargain, upon request, with Lodge 1096 as
exclusive representative of the involved employees; upon
request, to cancel certain changes in working conditions
unilaterally effectuated; 20 and to make restitution to
employees for any losses suffered by virtue of Respondent's
failure to abide by the involved collective-bargaining
agreement or of its institution of said unilateral changes.21
(Whatever monetary restitution Respondent's employees
may be entitled to shall be computed in the manner set
forth in F. W Woolworth Company, 90 NLRB 289, and shall
include interest in the amount and manner set forth in Isis
Plumbing & Heating Co., 138 NLRB 716.) And I shall
recommend that the order include a provision insuring
against a recurrence of the unfair labor practices here
found.
Furthermore, since the unfair labor practices committed
by Respondent are of a character striking at the roots of
employee rights safeguarded by the Act, I shall also
recommend that Respondent cease and desist from
infringing in any manner upon the rights guaranteed in
Section 7 of the Act.
20 Although I have found that Respondent's transfer out of the body
shop without notice to and consultation with Lodge 1096 constituted an
unfair labor practice, under all the circumstances -including the fact that
the evidence herein reveals that the body shop employees lost no
employment and that their working conditions are currently the subject of
collective-bargaining negotiations between Lodge 1096 and their present
employer-I do not believe that the effectuation of the purposes of the Act
calls for remedial action in this respect
21 There is a serious question as to whether employees suffered losses as
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this case
and pursuant to Section 10(c) of the Act, I hereby
recommend that the Board issue the following:
ORDER22
Bachrodt Chevrolet Co., Freeport, Illinois, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and to bargain collectively with
Lodge 1096, International Association of Machinists and
Aerospace Workers, AFL-CIO, as the exclusive representa-
tive of its employees in a bargaining unit consisting of the
fulltime and regular parttime employees in Respondent's
service department (for example, mechanics and bodymen
and their helpers and apprentices, wash boys, car jockeys,
errand boys, and janitors), but excluding sales, parts, and
office employees, and further excluding the manager and
assistant manager of the service department and of the
body shop and all other supervisors within the meaning of
the Act.
(b) Refusing to assume the obligations under and to
honor the terms of a collective-bargaining agreement
originally executed by and between the aforesaid labor
organization and Zimmerman Chevrolet, Inc. ("its succes-
sors and assigns") and last extended on or about February
9, 1969.
(c) Making any alterations in the working conditions of
the aforesaid employees without notification to and
bargaining with said labor organization.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization to form labor organizations, to join or assist
any labor organization, to bargain collectively through
representatives of their own choosing, to engage in
concerted activities for the purpose of collective bargaining
or other mutual aid or protection, and to refrain from any
and all such activities, except to the extent that such right
may be affected by an agreement requiring membership in
a labor organization as a condition of employment as
authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, recognize and bargain collectively with
said labor organization as the exclusive bargaining
representative of the employees in the above-described
unit.
(b) Give notice to and bargain with said labor
organization before effectuating any future changes in the
working conditions of said employees.
(c) Make restitution for any contractual benefits which
may have been unlawfully withheld from employees by
virtue of its failure to abide by the provisions of the
a result of Respondent's failure to honor the agreement or of its institution
of changes in working conditions The issue was not fully litigated
22 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations , and recommended order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes.
BACHRODT CHEVROLET CO.
collective-bargaining agreement in effect at the time of its
acquisition of the employing enterprise involved herein, in
the manner set forth in the portion of this decision entitled
"The Remedy."
(d) In the future, honor and abide by the terms of any
collective-bargaining agreement between itself and the
representative of the employees in the appropriate bargain-
ing unit.
(e) Upon request , cancel certain changes unilaterally
made on or about November 10, 1969, in the employment
conditions of the employees in said unit-changes with
respect to the method of computing mechanics ' incentive
pay per job, the manner in arriving at the guaranteed
minimum pay for each hour worked , the number of hours'
pay given for Good Friday time off, and the amount of
hourly pay to be paid for holiday time off.
(f) Make restitution for any benefits which may have
been lost by virtue of the above unilateral changes in
employment conditions , in the manner set forth in the
portion of this decision entitled "The Remedy."
(g) Post at its place of business at Freeport , Illinois,
copies of the attached notice marked "Appendix." 23 Copies
of said notice , on forms provided by the Officer-in-Charge
for Subregion 38, after being duly signed by Respondent's
authorized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter in conspicuous places, includ-
ing all places where notices to employees are customarily
posted . Reasonable steps shall be taken by Respondent to
insure that said notices are not altered , defaced, or covered
by any other material.
(h) Notify the Officer-in-Charge for Subregion 38, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.24
23 In the event that the Board 's 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 be changed to read "POSTED PURSUANT TO A JUDGMENT OF
THE UNITED STATES COURT OF APPEALS ENFORCING AN
ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
24 In the event that this recommended order is adopted by the Board,
this provision shall be modified to read "Notify the Officer -in-Charge for
Subregion 38, in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
1043
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with
Lodge 1096, International Association of Machinists
and Aerospace Workers , AFL-CIO, as the bargaining
representative of the fulltime and regular parttime
nonsupervisory employees in our service department.
WE WILL NOT make changes in the working
conditions of such employees without notice to and
consultation with such labor organization.
WE WILL, on request , cancel certain changes in
working conditions which we instituted on or about
November 10, 1969; and WE WILL pay employees for
losses, if any, suffered as a result of our having made the
changes.
WE WILL, in the future , honor and abide by the terms
of any collective -bargaining agreement with the above
labor organization ; and WE WILL pay employees for
losses, if any, suffered as a result of our withholding of
any benefits due under the collective-bargaining
agreement in effect when we acquired our operation.
WE WILL NOT , in any manner , interfere with,
restrain , or coerce our employees in the exercise of their
right to organize ; to form , join , or assist a labor
organization; to bargain collectively through a bargain-
ing agent chosen by themselves ; to engage in other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection; or to
refrain from any such activities except to the extent that
the right to refrain is limited by the lawful enforcement
of a lawful union-security clause.
Dated By
BACHRODT CHEVROLET CO.
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 10th
Floor , Savings Center Tower, 411 Hamilton Boulevard,
Peoria, Illinois 61602, Telephone 309-673-9282.