Indianapolis Mack Sales And Service, Inc.

National Labor Relations Board - Board DecisionsMay 26, 1988

288 N.L.R.B. 1123 (N.L.R.B. 1988)

INDIANAPOLIS MACK SALES & SERVICE 1123 Indianapolis Mack Sales and Service, Inc. and Inter- national Association of Machinists and Aero- space Workers, District Lodge No. 90. Case 25- CA-11470 May 26, 1988 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND CRACRAFT On September 28, 1984, the National Labor Re- lations Board issued a Decision and Order in this proceeding,' finding that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union as the exclu- sive representative of the Respondent's service em- ployees. On September 25, 1986, the United States Court of Appeals for the Seventh Circuit denied enforcement of the Board's Order and remanded the case to the Board for further proceedings con- sistent with the court's opinion. 2 The Board there- after accepted the court's remand and notified the parties that they could file statements of position. The General Counsel and the Respondent filed statements of position. On Jane 4, 1987, the Board issued an Order remanding the case to the adminis- trative law judge to make additional rulings, fmd- ings, and conclusions in light of the court's opinion. On November 27, 1987â€ž Administrative Law Judge Arline Pacht issued the attached supplemen- tal decision. The General Counsel filed exceptions and a supporting brief and the Respondent filed limited cross-exceptions and a supporting and an- swering brief. The General Counsel filed an an- swering brief to the Respondent's limited cross-ex- ceptions, and the Respondent filed a motion to strike the General Counsel's answering brief to the Respondent's limited cross-exceptions.3 The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board accepts the court's decision as the law of the case. The Board has considered the judge's supplemental decision and the record in light of the exceptions and briefs and has decided 1 272 NLRB 690 (1984) 2 802 F.2d 280 (7th Cir. 1986). 3 Sec 102 46(1) of the Board's Rules and Regulations provides that a party filing an answering brief to cross-exceptions must address only the questions raised in the cross-exceptions. The General Counsel's answering brief fails to address the Respondent's limited cross-exceptions. Accord- ingly, we grant the Respondent's motion to strike the General Counsel's answering bile* to affirm the judge's rulings, fmdings, 4 and conclu- sions3 and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. 4 The General Counsel has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for re- versing the findings We agree with the judge that the facts of this case indicate that the service employees do not share a community of interest distinct from that of the parts employees and that a separate service unit is inappropriate In so doing, we do not rely on the judge's discussion of merger of umts. 5 We also agree with the judge's conclusion that the Respondent, as the challenger of historically separate service and parts units, bOre the burden of showing that the histotical units are no longer appropriate. We do not, however, rely on the judge's rationale that the court resolved the burden issue by stating that the Respondent "would have been better ad- vised to have made an offer of proof." We find that the judge's conclu- sion is fully supported by the Board's longstanding policy that a mere change m ownership should not uproot bargaining units that have en- joyed a history of collective bargaining unless the units no longer con- form reasonably well to other standards of appropriateness. See NLRB v. Burns Security Services, 406 U.S. 272, 279 (1972), and Crown Zellerbach Corp., 246 NLRB 202, 203 (1979). The General Counsel argues as an alternative theory that even if a combined unit of service and parts employees is the only appropriate unit, the Respondent still unlawfully refused to bargain with the Union because the Union had majority support in that combined unit at the time of its initial recognition demand. The complaint, however, specifically al- leged that the Respondent refused to recognize and bargain with the Union as the exclusive representative of the service employees and did not allege a refusal to bargain in a combined unit. The General Counsel never contended, in her case-in-chief, that the Respondent refused to bar- gain with the Union as the exclusive representative of a combined service and parts unit. Rather, the General Counsel presented this alternative ar- gument for the first time m her brief to the judge after the close of the supplemental hearing. In these circumstances, we reject the General Counsel's argument as untimely raised. SUPPLEMENTAL DECISION ARLINE PACHT, Administrative Law Judge. A supple- mental proceeding was held before me in Indianapolis, Indiana, on 10 and 11 August 1987, to determine wheth- er a separate bargaining unit including only service de- partment employees is appropriate following Respond- ent's acquisition of Mack Trucks, Inc. The parties were afforded full opportunity to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally, and to submit briefs. Taking into account the de- meanor of the witnesses, and after considering the entire record, together with the parties' posttrial briefs, I make the following FINDINGS OF FACT I. PROCEDURAL BACKGROUND This case originally came to trial on 2 February 1983. On 31 May 1983, I issued a decision finding that Re- spondent was a successor to Mack Trucks, Inc. and, as 288 NLRB No. 126 1124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD such, had violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the incumbent Union that continued to represent a representative com- plement of the Company's service employees. Respond- ent appealed this decision to the Board, excepting among other matters to the finding that the unit that excluded parts department employees was appropriate. On 28 September 1984, the Board (Chairman Dotson dissenting) affirmed the decision and adopted my recom- mended Order, fmding, inter alia, that the service depart- ment employees constituted an appropriate unit given the employees' common work interests and 18-year history of separate representation. 272 NLRB 690 fn. 4 (1984). The Board distinguished Graneto Datsun, 203 NLRB 550 (1973) (which holds that a single unit of service and parts employees is presumptively appropriate unless it is affirmatively shown that so substantial community of in- terest exists between the the groups) as a case applicable in initial organization. Ibid. The United States Court of Appeals for the Seventh Circuit subsequently denied the Board's petition for en- forcement and remanded the case, ruling that the record contained insufficient evidence to sustain the conclusion that a separate unit for service employees alone was ap- propriate. NLRB v. Indianapolis Mack Sales, 802 F.2d 280 (7th Cir. 1980). In reaching this conclusion, the court observed that the Board had failed to explain its exclu- sion of the instant case from the Graneto Datsun pre- sumption that parts and service departments should be in one bargaining unit. Ibid. at 284. 1 Further, the court noted that bargaining history alone was insufficient to support the Board's conclusion that a separate unit of service department employees was appropriate without inquiry into the parts department employees' community of interest. The court suggested that the Board could modify or repudiate the Graneto Datsun rule, or deter- mine on the basis of further evidence that the specific facts in the instant case justify segregating the two units. Ibid. Thereafter, in response to the Board's request, the par- ties submitted statements of position. Without comment- ing on these statements, the Board issued an Order on 4 June 1987 remanding the case to me for further hearing and "to make additional rulings, findings, and conclu- sions in light of the court's opinion." II. EVIDENCE BEARING ON THE APPROPRIATE UNIT QUESTION The record shows that in 1963 the predecessor em- ployer, Mack Trucks, Inc., executed a collective-bargain- ing agreement that recognized the Union as the exclusive representative for the following unit: All leadmen, mechanics, and porters employed by the Employer at its Indianapolis branch; but exclud- ing office clerical employees, guards, watchmen, 1 The court cited in support of this rule Honda of San Diego, 254 NLRB 1248, 1263 (1981), Gregory Chevrolet, 258 NLRB 233, 238 (1981), Graneto Datsun, supra, and Harry Brown Motor Co., 86 NLRB 652, 654 (1949). Id Each of these cases involved an initial union organizational effort. service employees, all stockroom employees and su- pervisors as defined in the Act. General Counsel's Exhibit 4 further establishes that in November 1963, the Board certified the Union as the bargaining representative for a separate unit including: All parts department employees at the Employer's Indianapolis, Indiana establishment; but excluding all office clerical employees, all leadmen, mechanics and porters and all professional employees, watch- men, guards, and supervisors as defined in the Act. The first of a series of labor contracts was executed on behalf of the parts employees in January 1964. 2 Thereaf- ter, the predecessor and Union negotiated a series of sep- arate agreements for each unit through 1984. However, in 1982, in light of the Respondent's purchase of Mack Trucks, the parties terminated the labor contracts with one memorandum of agreement containing identical terms for employees of both departments. As established in the original proceeding, following its acquisition of the predecessor's business, Respondent continued to sell and service Mack trucks at the same lo- cation in the same general market area. It also retained the predecessor's organizational structure that was com- prised of four departments: clerical, sales, service, and parts. At the time of the supplemental hearing, 23 or 24 employees were included in these latter two depart- ments; 16 in the service department and 7 in parts. 3 Em- ployees in these two units continued to work in adjacent areas with only a wall separating their contiguous work space. A fire door remained opened at all times with easy access between the two departments. III. EMPLOYEES' JOB FUNCTIONS AND INTERCHANGE Both under the predecessor and the Respondent, parts and service employees shared the overall goal of servic- ing and repairing customers' trucks. Of course, there was a division of labor between the groups. As conceded at the first trial, Respondent's service department employ- ees are directly responsible for repairing vehicles, relying on the same skills and tools that they used when em- ployed by the predecessor. Parts employees continued to be primarily engaged in selling parts to customers, issu- ing parts to mechanics, receiving new parts, and storing them in Respondent's stockroom. The collective-bargaining agreements show that under the predecessor, service department employees were classified as leadmen, journeymen, class B mechanics, ap- prentices, and porters. Respondent has abandoned these discrete categories. Now, everyone in the service depart- 2 The recognition clause of these agreements refers to parts employees as "stock room employees" 3 In its first decision in this case, the Board affirmed my finding that on the date the Union requested recognition and bargaining on behalf of the service department employees, Respondent had hired 10 mechanics, 8 of whom, as holdovers, constituted a clear majority in a representative complement. 272 NLRB 690, fn. 3, 694. Respondent's records also show that it commenced operations with five parts department employees, three of whom had worked for the predecessor Thus, it may be pre- sumed that at that time the Umon enjoyed continuing majority support among a relevant complement of parts department employees as well. INDIANAPOLIS MACK SALES & SERVICE 1125 ment is simply designated a mechanic regardless of his level of skill. The State of Indiana does not require that mechanics be certified and neither the predecessor nor the Respondent insisted on certification either before or after employment. Respondent's current sales manager, Donald Ingram, who previously served as the predeces- sor's service department supervisor, testified credibly, however, that Respondent prefers to employ experienced personnel in both parts and service. Indeed, Peter Sotos, a mechanic who worked 14 years for the predecessor before continuing as Respondent's most senior mechanic, has had no training other than that acquired in the job. The record also contains nothing to suggest that any mechanic, even the most skilled, specializes in a particu- lar task. To the contrary, the evidence indicates that Re- spondent assigns mechanics, skilled and unskilled, to a wide range of jobs. However, lesser skilled mechanics, who comprised approximately 50 percent of the depart- ment at the time of the instant hearing, do not perform the more complex jobs alone. Rather, they serve as help- ers, assisting their more experienced coworkers. They also are assigned more menial tasks such as running for parts for delivery to parts and service personnel, mowing grass, and mopping floors. In performing their work, mechanics rely extensively on parts departinent employees who spend an estimated 20 percent of their shift locating specific items needed by mechanics. Often a parts department employee will ac- company a mechanic to a disabled vehicle to assist in de- termining the precise part needed for the repair. To en- hance the workflow between the two departments, Re- spondent has created a position of parts-service coordina- tor. If their regular work schedule is slack, mechanics may be assigned temporarily to the parts department to unload new parts or pack parts under warranty for re- shipment to the factory. Parts employees are primarily responsible for serving Respondent's customers, and spend 20 percent of their time doing so. Mechanics, too, however, have customer contact, obtaining parts for them or responding to their inquiries. Particularly during second and third shifts, when the service supervisor is not present, mechanics are more involved in serving cus- tomers, which may include preparing the necessary pa- perwork and completing transactions. Some five or six mechanics are trained to enter sales data into a computer in their department which, like the computer in the parts department, is programed to track stock as it moves in or out of the parts inventory. Ingram estimated that the service department generates 40 to 50 percent of the parts sales volume. Under Respondent's flexible management practices, parts department employees can and do perform a varie- ty of semiskilled tasks usually performed by service de- partment employees. For example, they may undertake minor electrical repairs, change windshield wipers, tail lights, or mud flaps. They also assist with preventive maintenance, which includes oil changes and lubrica- tions. Them,also may install new aerquip lines. Parts em- ployees do not maintain a personal set of expensive hand- tools as mechanics do, but from time to time, they may borrow the mechanics' tools or use others which the Re- spondent supplies. Joint training opportunities offered since Respondent's takeover underscore the close working relationship be- tween the two units. Except for several mechanics who were sent to a special Mack Truck factory training pro- gram shortly after Respondent assumed control of the Company, there has been little offsite training for em- ployees classified as mechanics. Instead, Mack Truck representatives offer in-house training to parts and serv- ice employees together in an effort to familiarize them with new stock. In addition, Mack Truck field service representatives visit Respondent's facility every 6 to 8 weeks to advise employees about any problems that may arise. Under the predecessor, employees rarely transferred between the parts and service departments, although Ingram recalled that one parts employee had moved into the service department. Under Respondent, such trans- fers have become more common. Thus, the General Counsel offered into evidence as Exhibit 3, a summary prepared by the Respondent which shows that between 1982 and 1987, five service department employees trans- ferred to the parts department while four parts employ- ees transferred into the service department.4 Respondent also retained the predecessor's departmen- tal supervisory structure. While service and parts super- visors continued, however, to manage the day-to-day work of their respective groups, they no longer had au- thority to hire or fire or commit their employer's credit as they did under the predecessor. Instead, Respondent's president, Lewis Richardson, assumed ultimate authority over such matters and was solely in control of wage de- cisions. He also unilaterally instituted an experimental bonus program that affected several selected employees in both parts and service, although the method of calcu- lating the bonus differed for each group. 5 Richardson testified that he had n 6 schedule for granting pay in- creases but would periodically review each employee's rate and decide whether a raise was appropriate. Based on Respondent's business records, the General Counsel determined that in 1987, 22 mechanics employed by Re- spondent earned on the average $9.28 per hour. During the same period, parts employees' average hourly wage was $5.50. These disparities generally reflect the differ- ences in wage scales set for parts and service unit em- ployees in the collective-bargaining agreements. 4 Counsel for the General Counsel submits that the Respondent's pay- roll records failed to substantiate these transfers It is true that counsel questioned Respondent's president about the existence of other docu- ments that might reveal when the transfers occurred. By offering Exh. 3 into evidence, however, the General Counsel apparently accepted that document as authentic and relevant Although my search was not exhaus- tive, I found evidence in Respondent's payroll records that employee Russ Hargiss transferred from service to parts and that employee Bob Edwards moved from parts to service In addition, Ingram's testimony was undisputed that transfers have occurred with greater frequency since Respondent's acquisition of the business. 5 The bonus for parts employees was based on the total volume of parts sales whereas the service employees' bonus was based on the timeli- ness with which a particular task was completed 1126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD IV. COLLECTIVE BARGAINING UNDER THE PREDECESSOR The collective-bargaining agreements establish that separate contracts were executed for the parts and serv- ice department units between 1963 and 1984. A compari- son of the parts and service contracts reveals, however, that with the exception of different job classifications and higher hourly wages for mechanics, their other terms are almost identical. For example, employees of both the parts and service units shared the same holidays, the same vacation policy, the same overtime and premium pay policies, and the same grievance and arbitration pro- cedure. Verbatim provisions in these agreements guaran- teed both groups of employees the same life insurance, retirement, and medical plans Ingram, who as the prede- cessor's service department supervisor participated in ne- gotiations leading to the last few collective-bargaining agreements, testified without refute that negotiations for the parts and service department units proceeded simul- taneously. Thus, although two separate contracts were endorsed, bargaining was conducted as if parts and serv- ice were a single unit. Respondent has continued the custom established under the collective-bargaining agreement of providing employees in both units the same fringe benefits. Thus, parts and service employees are covered by the same life and accident insurance policy, the same pension program (until the Company suspended it), and the same group medical policy. In addition, parts and service employees continue to share other common working conditions just as they did under the predecessor. They are paid accord- ing to an hourly rate, receive their paychecks on the same day, and assigned to one of three shifts that over the same 8-hour time periods, use the same entrances, share locker room facilities, eat together in Respondent's lunchroom at the same time and park in the same area adjacent to the facility. Discussion and Concluding Findings Whether a bargaining unit remains appropriate follow- ing a change in ownership is unquestionably a relevant inquiry in a successorship case. The General Counsel contends that in answering this inquiry in accordance with Board precedent, a Successor employer is obliged to bargain with the incumbent union that represents a ma- jority of employees as long as the unit is appropriate and remains intact. Thus, counsel maintains that the correct test is whether the successor employer has introduced changes significant enough to render the unit inappropri- ate. He claims that the Respondent failed to prove that such changes occurred. Therefore, he argues, the service department continued to be appropriate and intact and Respondent's refusal to bargain with the Union as the ex- clusive representative of that unit violates Section 8(a)(5) and (1) of the Act. Based on its reading of the court of appeals' decision in this case, the Respondent argues that the General Counsel bore the burden of proving that there was no substantial community of interest between service and parts department employees and that his failure to do so leads to the conclusion that a unit composed solely of service department employees was and continues to be inappropriate. Respondent has stretched the circuit court's decision beyond its intended borders. Surely, the court did not mean to depart from settled Board principles governing the proper test for determining an appropriate unit in a successor situation as correctly stated in cases cited by the General Counsel such as Saks Fifth Avenue6 and White-Westinghouse Corp. ? The Board and the courts have long recognized the need to preserve established bargaining units that have enjoyed a history of stable collective bargaining, if in fact, that is the case. 8 A mere change in ownership should not uproot such units as long as they remain appropriate and retain their separate identity. See NLRB v. Burns Security Services, 406 U.S. 272, 279 (1972). However, the Board "will not adhere to the historical bargaining unit where that unit does not conform reasonably well to other standards of appropri- ateness." The circuit court's opinion should be construed in light of these precedents. Accordingly, I understand that the court remanded this case so that the Board might clarify its position with respect to the applicability of the Graneto Datsun doctrine in this successorship situation or, alternatively, to determine whether the Respondent's service and parts departments should be segregated for reasons other than bargaining history alone. However, in commenting that "Indianapolis Mack would have been better advised to have made an offer of proof,"" the court seems to suggest that as the purported successor, the Respondent bears the burden of adducing sufficient evidence to establish that a single unit of service and parts employees is warranted in accordance with the Graneto Datsun rule." In other words, in an automotive successorship case such as this, the party challenging his- torically separate service and parts units must affirma- tively prove that a substantial community of interest exists between the units before they are joined for collec- tive-bargaining purposes. Given this burden, Respond- ent's motion to dismiss at the close of the General Coun- sel's case-in-chief was premature and is denied. Based on evidence adduced by the Respondent on remand and on the totality of circumstances, however, I find that the Respondent has met its burden. At the original hearing, the General Counsel estab- lished that the Respondent continued the predecessor's business at the same location, retained the same depart- mental structure, and began operations with a representa- tive complement of mechanics, a majority of whom had been employed by the predecessor and represented by the Union. With some insignificant modifications, the mechanics continued to perform the same functions, using the same skills, with the same tools as they had in the past. At the present hearing, the General Counsel further proved that parts employees performed different 6 247 NLRB 1047 (1980), enfd. 634 F 26 681, 686 (2d Cir. 1980). '229 NLRB 667, 674 (1977), enfd. 604 F.2d 689 (D.0 Cir. 1979). 8 See Great Atlantic & Pacific Tea Co., 153 NLRB 1549, 1550 (1965). 9 Crown Zellerbach Corp., 246 NLRB 202, 203 (1979). 10 802 F.2d at 284. " Wigmore terms this "the risk of nonpersuasion." 9 Evidence Â§ 2485. INDIANAPOLIS MACK SALES & SERVICE 1127 , tasks than did the mechanics and were paid according to a lower wage scale. Collective-bargaining agreements also were introduced which showed that separate con- tracts were concluded for the two units over several dec- ades. Without more, such evidence might be considered sufficient for a prima facie showing that the two units continued intact. Although it is true that the Board usu- ally groups parts and service employees in a single unit, "a smaller unit is acceptable if it has been agreed to by the parties and is not repugnant to the . . Act." NLRB v. Lyon & Ryan Ford, 647 F.2d 745, 752 (7th Cir. 1981). Thus, since the predecessor employer recognized segre- gated units in separate contracts, the smaller unit of serv- ice employees alone was appropriate within the intend- ment of the Act, even if a unit which combined parts and service employees might have been more appropri- ate, The Respondent presented evidence, however, which overcame the claim that the parts and service units were separate either before or after the takeover. As the facts unfolded at the supplementary hearing, it became evident that in reality, and for all practical purposes, the Union and the predecessor had treated the groups of employees as one unit for many years. Ingram's uncontroverted tes- timony established that at least since 1972, collective bar- gaining was carried out in unison for both units and re- sulted in contracts that provided parts and service em- ployees terms and conditions of employment that were identical in almost every respect except for job classifica- tions and hourly wage structure. The Respondent contin- ued to treat parts and service employees alike with re- spect to holidays, vacations, and many other employment benefits. The Board, heretofore, has recognized that indi- vidually certified or voluntarily recognized units may merge into a single-integrated unit through the agree- ment of the union and employer or by Board order. See White-Westinghouse Corp., supra at 674-675. Merger may occur even when the units are geographically isolated and the employees in the various units have no inter- change. Id. at 674. Where, as here, the parts and service employees work in contiguous areas under one roof and have frequent contacts, a de facto merger is all the more likely and reasonable. If a successor employer may not insist on bargaining for individual units when the merged unit remains substantially intact after a takeover, neither may a union. Since the takeover, Respondent has continued business practices of its predecessor and introduced new practices that strengthen the mutual interests of the parts and serv- ice employees. Thus, as discussed above, interaction be- tween parts employees and mechanics occur with even greater frequency under Respondent's administration than under the predecessors. Transfers of employees in and out of these units also has increased. As the Board stated in Harry Brown Motor Co., 86 NLRB 652, 654 (1949), "it is perfectly clear that the service departments are heavily dependent upon the parts departments and in fact cannot function without [them]." In the Harry Brown case, the Board did not find that the sale of parts to the general public by the parts employees destroyed the community of interest between that department and the service unit. Id. at 654. In light of that finding, even more reason exists in the present case to find a communi- ty of interest between service and parts employees be- cause the mechanics also have significant dealings with customers. Indeed, the record in this case is barren of evidence to support the conclusion that Respondent's service depart- ment employees constitute a separate appropriate craft unit. Unlike the mechanics described in Dodge City of Wauwatosa, 282 NLRB 459 (1986), Respondent's service department employees are not certified before or after hiring, are not afforded outside expert training, and do not have specific specialties. They interact consistently with parts department employees, have sales-related functions, and frequently serve customers. In addition, mechanics may assist in the parts department while parts employees may perform minor mechanical repairs. Given this blurring of functions, it cannot be said as it was in Dodge City that Respondent's mechanics are a "distinct and homogeneous group of highly trained and skilled craftsmen .' . . ." Id. at 460. Apart from their functional integration, employees in both units have significant interchange through other means: they work in adjacent sections of the same build- ing, eat lunch together, use a single locker room, the same parking area, and common entrances. In sum, the facts adduced at the supplementary hear- ing compel a resolution of this case that reconciles Board precedent governing appropriate units in successorship cases with the Graneto Datsun doctrine. The record clearly establishes that parts and services employees have shared a wide range of interests for many years, and per- haps because of this were treated by the predecessor and the Union as if they were a single-integrated unit, con- sistent with the spirit of the Graneto Datsun rule. Be- cause the Respondent has not altered its operations in any way that would impinge on the mutual interests link- ing the the groups, a segregated unit including only serv- ice employees is inappropriate. It follows that because Respondent did not violate Section 8(a)(1) and (5) of the Act by refusing to recognize and bargain with the Union on behalf of a separate service department unit, the com- plaint should be dismissed." CONCLUSIONS OF LAW Based on the totality of circumstances in this some- what unusual case, I conclude that the unit described below is not appropriate within the meaning of Section 9(b) of the National Labor Relations Act: All leadmen, mechanics and porters employed by the Employer at its Indianapolis branch, but exclud- ing office clerical employees, guards, watchmen, service employees, all stockroom employees and su- pervisors as defined in the Act. 12 The finding in the original decision in this case that there was sub- stantial continuity in the employing industry following Respondent's takeover and that union members constituted a majority of representative complements m both service and parts departments at the time that the Union requested recognition and bargaining is unaffected by evidence produced at the supplementary hearing. 1128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Therefore, the Respondent's refusal to recognize and bargain with the International Association of Machinists and Aerospace Workers, District Lodge No. 90; did not violate Section 8(a)(1) and (5) of the Act, as alleged in the complaint. Accordingly, pursuant to Section 10(c) of the Act, I recommend issuance of the following" ORDER The complaint in Case 25-CA-14790 is dismissed. Order shall, as provided m Sec 102.48 of the Rules, be adopted by the 13 If no exceptions are filed as provided by Sec 102.46 of the Board's Board and all objections to them shall be deemed waived for all pur- Rules and Regulations, the findings, conclusions, and recommended poses.