Naperville Jeep/Dodge

National Labor Relations Board - Administrative Judge Opinions

Aug 2, 2010

13-CA-045399 (N.L.R.B. Aug. 2, 2010)

JD–40–10
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
DODGE OF NAPERVILLE, INC. AND
BURKE AUTOMOTIVE GROUP, INC.
D/B/A NAPERVILLE JEEP/DODGE,
A SINGLE EMPLOYER
and Case 13-CA-45399
AUTOMOBILE MECHANICS LOCAL
NO. 701, INTERNATIONAL ASSOCIATION
OF MACHINISTS AND AEROSPACE
WORKERS, AFL-CIO
Richard S. Andrews, Esq.
for the General Counsel.
James F. Hendricks, Jr., Esq.
(Ford & Harrison, LLP)
Chicago, Illinois,
for the Respondent.
Sherrie E. Voyles, Esq.
(Jacobs, Burns, Orlove,
Stanton & Hernandez)
Chicago, Illinois,
for the Charging Party.
DECISION
Statement of the Case
PAUL BOGAS, Administrative Law Judge. I heard this case in Chicago, Illinois, on
March 15 and 16, 2010. The Automobile Mechanics Local No. 701, International Association of
Machinists and Aerospace Workers, AFL-CIO (“the Union” or “Local 701”), filed the original
charge on July 8, 2009, and amended charges on July 28, 2009, December 28, 2009, and
January 19, 2010.1 The Regional Director of Region 13 of the National Labor Relations Board
(“the Board”) filed the initial complaint on December 17, 2009, and the amended complaint (“the
complaint”) on January 19, 2010. The complaint alleges that Dodge of Naperville, Inc., and

1 The First Amended Complaint mistakenly states that the final amended charge was filed
on January 19, 2009, instead of 2010. The exhibits, see General Counsel’s Exhibit Number
(“GC Exh.”) 1(m), and the record as whole show that this is an error and that the final amended
charge was filed on January 19, 2010. The timing of the charges was not raised as a defense
to the allegations in the complaint.
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Burke Automotive Group d/b/a Naperville Jeep/Dodge, a single employer, (referred to
collectively as “the Respondent”) committed various violations of the National Labor Relations
Act (“the Act”) at the time it ceased operations at a facility where the mechanics were organized
by the Union and continued operations at its non-union facility. More specifically, the complaint
alleges that the Respondent violated Section 8(a)(5) and (1): by relocating the unionized
mechanics to its non-union facility without bargaining over the effects of that relocation; by
repudiating the collective-bargaining agreement covering those mechanics; by unilaterally
changing mechanics’ terms and conditions of employment; by withdrawing recognition from the
Union; and by failing to provide the Union with requested information relating to the termination
of operations at the Union facility. The complaint further alleges that the Respondent
constructively discharged two of the bargaining unit mechanics in violation of Section 8(3) and
(1) when it required them to work without union representation and union contractual benefits,
and that it threatened employees in violation of Section 8(a)(1) by telling the union mechanics
that after the relocation they would no longer be unionized or have union benefits, would never
have a unionized store, and would be discharged if they went on strike. The Respondent filed a
timely answer in which it denied committing any of the violations alleged, and also denied that
Dodge of Naperville and Burke Automotive Group, Inc. are a single employer.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following finds of fact and conclusions of law.
Finds of Fact
I. Jurisdiction
Burke Automotive Group, Inc. d/b/a Naperville Jeep Dodge (referred to individually as
“Burke Automotive” or “the Lisle facility”), a Delaware corporation with offices and a place of
business in Lisle, Illinois, 2 is engaged in the operation of an automobile dealership. In
conducting these business operations, Burke Automotive, annually derives gross revenue in
excess of $500,000 and purchases and receives goods valued in excess of $50,000 directly
from points outside the State of Illinois. The Respondent admits, and I find, that Burke
Automotive has, at all relevant times, been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. From September 2003, until at least June 20,
2009, Dodge of Naperville, Inc. (referred to individually as “Dodge of Naperville” or “the
Naperville facility”), an Illinois corporation with offices and places of business in Naperville,
Illinois, was engaged in the operation of an automobile dealership. In conducting these
business operations, Dodge of Naperville, annually derived gross revenue in excess of
$500,000 and purchased and received goods valued in excess of $50,000 directly from points
outside the State of Illinois. The Respondent admits, and I find, that from September 2003 until
at least June 20, 2009, Dodge of Naperville has been an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act. In addition to each being an employer
under the Act as stated above, Burke Automotive and Dodge of Naperville have, at all relevant
times, collectively been a single employer3 engaged in commerce within the meaning of Section

2 Burke Automotive Group, Inc. d/b/a Naperville Jeep/Dodge is located in Lisle, Illinois, not
as its name suggests, in Naperville, Illinois. Dodge of Naperville is actually located in
Naperville.
3 I find that Burke Automotive and Dodge of Naperville are a single employer under the
applicable standards for the reasons set forth in the “analysis and discussion” section of this
decision.
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2(2), (6) and (7) of the Act.
Burke Automotive and Dodge of Naperville admit, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Background Facts
This case involves two car dealerships – Burke Automotive in Lisle, Illinois, and Dodge
of Naperville, which is on the same street in nearby Naperville, Illinois. Both of these
dealerships are in the business of selling and servicing Chrysler-manufactured vehicles. The
two entities are incorporated separately, but Dodge of Naperville is a wholly owned subsidiary of
Burke Automotive. Edward Burke (Ed Burke) is the sole owner of Burke Automotive and,
through that entity, is also the sole owner of Dodge of Naperville.
Ed Burke has been the president of Burke Automotive since 1987. As of May 2009,
Burke Automotive was authorized by Chrysler, and licensed by the State of Illinois, to sell two
brands of Chrysler vehicles – Jeep and Dodge – at the Lisle facility. Employees at the Burke
Automotive facility in Lisle have, at least prior to June 2009, not been represented by a Union.
Ed Burke purchased the second dealership, Dodge of Naperville, in 2003. In 1989, prior
to the purchase, mechanics at the second dealership elected to be represented by the Union
and that representation continued when Ed Burke acquired the facility.4 On September 22,
2005, Dodge of Naperville and the Union executed a collective bargaining agreement that was
effective, by its terms, from August 1, 2005 to July 31, 2009.
As part of Chrysler Motors bankruptcy proceedings in early 2009, the Chrysler Group
obtained bankruptcy court permission to cancel its franchise agreements with a number of
dealerships. When a dealership’s franchise was cancelled it meant that the dealership could
no longer sell new Chrysler-manufactured vehicles. Among the franchises that Chrysler
selected for cancellation were the Jeep and Dodge franchises operated by Ed Burke at Burke
Automotive in Lisle. Pursuant to Chrysler’s selections, the bankruptcy court entered an order
canceling Burke Automotive’s Lisle franchises, effective June 9, 2009.5 The franchise for
Dodge of Naperville, on the other hand, was one of the franchises that Chrysler chose to
continue in effect.
When, on May 13, 2009, the Chrysler Group informed Ed Burke that it had selected the
Lisle franchises for cancellation, Ed Burke embarked on an effort to convince Chrysler to

4 The terms “mechanic” and “technician” are used interchangeably in the record. The
Respondent admits that the Unit includes: “All technicians, apprentices, lube rack technicians,
and semi-skilled technicians employed by the Respondent at its Naperville, Illinois facility; but
excluding all office clerical employees and guards, professional employees and supervisors as
defined in the Act.” The General Counsel’s unit description also makes reference to the “body
shop,” but it does not appear that inclusion of that reference would change the reach of the Unit
description. There is no dispute that as of June 19, 2009, there were six employees in the Unit:
Robert Adams, Donald Lein, Eddie Lopez, Mike Marjanovich, Chris Miles, and Tony Zeka.
5 GC Exh. 22 (Order of the United States Bankruptcy Court for the Southern District of New
York in Case No. 09-50002, Dated 6/6/09).
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reverse its decision.6 After numerous contacts with Chrysler officials, Ed Burke succeeded in
persuading Chrysler to relent to the extent that, at some time between June 9 and June 17,
Chrysler told Ed Burke that instead of mandating the elimination of the Lisle franchises, it was
now giving the Respondent the choice between cancellation of the franchise agreements for
Lisle location and cancellation of the franchise agreement for the Naperville location. Transcript
at Page(s) (hereinafter “Tr.”) 381-82. Ed Burke chose to cancel the franchise agreement for the
Naperville location where the unit employees worked in order to revive the Jeep and Dodge
franchises as the Lisle location. According to Ed Burke’s testimony, if he had not chosen to
resume selling new automobiles at the Lisle facility, he could have continued to sell and service
new Dodge vehicles at the unionized Dodge of Naperville location. 7
On June 17, 2009, Ed Burke signed agreements that authorized him to continue selling
the Dodge and Jeep lines in Lisle, and on June 19, 2009, an official for Chrysler approved the
agreements. At Chrysler’s insistence, Ed Burke agreed that in 17 months he would return the
operation to the Naperville site after completing renovations there.

6 The Respondent asks me to draw an adverse inference against the General Counsel
based on its failure to illicit the testimony of the Chrysler Group official or officials who engaged
in these negotiations. It would not be appropriate to draw such an inference since the Chrysler
Group officials were not shown to be favorably disposed towards the General Counsel or the
Union. Electrical Workers IBEW Local 3 (Teknion, Inc.), 329 NLRB 337, 337 fn.1 (1999) (stating
that the appropriate inquiry for a judge to make, when determining whether to draw an adverse
inference from a party’s failure to call a potential witness, is whether the witness may
reasonably be assumed to be favorably disposed to the party); International Automated
Machines, Inc., 285 NLRB 1122, 1122-23 (1987), enfd. 861 F.2d 720 (6th Cir. 1988) (Table)
(same). If anything, the Chrysler Group officials would appear to have a commonality of interest
with the Respondent, with which they share certain business objectives and business
agreements.
7 Ed Burke testified that the reasons he chose to retain the Lisle-based franchises instead of
the Naperville-based franchises were: in Lisle he had franchises to sell both Jeep and Dodge
brand vehicles whereas in Naperville he only had a franchise to sell Dodge brand vehicles; and
he had more employees at the Lisle facility than at the Naperville facility. That testimony is
facially plausible and I credit it.
There is a related, but separate question, regarding Ed Burke’s motivation for choosing
to use Burke Automotive, rather than Dodge of Naperville, as the surviving, active, corporate
entity. The record shows that Chrysler identified Dodge of Naperville as the surviving corporate
entity in the documents signed on June 17 and 19. However, on June 23, the Respondent
asked Chrysler to modify and re-execute those documents to identify Burke Automotive rather
than Dodge of Naperville as the surviving corporate entity. Chrysler agreed, and the
Respondent executed the altered paperwork on July 6, 2009. Ed Burke suggested that this was
necessary because Burke Automotive was licensed by the State of Illinois to sell both Jeep
vehicles and Dodge vehicles at the Lisle location, but Dodge of Naperville was only licensed to
sell Dodge vehicles at the Naperville location. However, since the arrangement with Chrysler
called for the Respondent to move the entire operation to the Naperville location in 17 months, it
would appear that Ed Burke would be required to obtain a license to sell Jeep vehicles at the
Naperville location in any event. Ed Burke conceded that the State license for a particular
dealership location could be amended to authorize the sale of an additional vehicle line. I do not
find it necessary to reach a determination on the question of whether the Respondent’s decision
to use Burke Automotive, rather than the unionized Dodge of Naperville, as the surviving
corporate entity was motivated by unlawful concerns.
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The Respondent denies that Ed Burke selected the Dodge of Naperville location for
closure, and contends that Chrysler made that selection. In its brief, the Respondent asserts
that “Mr. Burke was instructed by Chrysler to cease doing business in Naperville beginning
Saturday, June 20, 2009, and to start selling at the Lisle facility.” Brief of Respondent at Page
6. That assertion is contrary to the record evidence. Even the portions of Ed Burke’s testimony
that the Respondent cites as support for its assertion (Tr. 102, 344, 378) show that Chrysler did
not require the Respondent to make the change. Rather Ed Burke testified that, on June 19,
Chrysler told him he was “authorized,” “approved,” and given the “go ahead,” to resume
operating the franchises in Lisle, and to stop selling in Naperville, Tr. 344 and 378. Even if
Chrysler had directed Ed Burke to make the change, the record would still not show that
Chrysler required him to implement the change immediately, or in any way prevented him from
waiting to make the change until after he had given the Union notice and an opportunity to
bargain. Furthermore, assuming for purposes of discussion that Chrysler directed Ed Burke to
cancel the franchise for Dodge of Naperville, that would not mean the Respondent had to close
that dealership; according to Ed Burke’s own testimony he could use a dealership to sell and
service used cars even if that dealership had no new car franchise.8
On June 20 – the day after receiving final approval from Chrysler to substitute
cancellation of the Naperville franchise for cancellation of the Lisle franchises – the Respondent
notified the unit employees that its Naperville facility was being closed effective immediately and
that it would offer employment to as many of them as possible at its Lisle facility. Subsequently,
the Respondent offered employment at the Lisle facility to all six of the mechanics from the
Naperville Unit, but told them they would no longer be represented by the Union and would not
receive the wages and benefits provided under the Union contract. Instead, the Naperville unit
mechanics would be working under the less favorable terms and conditions of employment that
the Respondent was providing to the 14 non-unit mechanics already present as the Lisle facility.
Two of the bargaining unit mechanics – Robert Adams and Mike Marjanovich – declined to
accept employment at the Lisle facility on the terms that the Respondent was offering. Adams
had been working for Dodge of Naperville in May 2004 and has been a union member for 24
years. Marjanovich began working at the Naperville facility in 1999, when it was under different
ownership, and became a union member at that time.
B. Interrelation of Burke Automotive and Dodge of Naperville
One of the points of contention between the parties involves the question of whether
Burke Automotive in Lisle and its wholly owned subsidiary, Dodge of Naperville, are a single
employer for purposes of the Act. Single employer status is alleged by the General Counsel
and denied by both Burke Automotive and Dodge of Naperville. As discussed above, Burke
Automotive and Dodge of Naperville are in the same business – selling and servicing Chrysler-
manufactured vehicles – and both are owned by Ed Burke.9 In addition, the two corporate
entities have the same two corporate officers (Ed Burke, president and Pennie Squires,
secretary)10 the same general manager (Sam Guzzino), the same controller (Pennie Squires),
and, prior to the closure of the Naperville facility, the same parts manager (Chris Belinski).

8 The record does not indicate that renovations which Chrysler was requiring at the
Naperville location could not be made while used car sales and service continued there.
9 As discussed above, Dodge of Naperville is wholly owned by Burke Automotive, and Burke
Automotive (including Dodge of Naperville), is wholly owned by Ed Burke. As of the time of the
trial in this matter, neither corporate entity had been dissolved or formally deactivated.
10 These are the only corporate officers for the two entities.
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In addition, Ray Rossi, who oversaw building maintenance and personnel matters at the
Lisle facility, also oversaw building maintenance at the Naperville facility and on occasion
became involved in personnel matters there. Rossi was among those officials who helped train
the employees at Dodge of Naperville when Ed Burke purchased that facility in 2003. Rossi
testified that his role in the training was to make sure that the Naperville facility and the Lisle
facility “should be married . . . everything the same.” Both Guzzino and Rossi were present at
the Naperville facility on June 20, 2009, to notify employees that the location was being closed
and to help arrange to bring vehicles from that location to the Lisle facility. In addition, when a
unit employee complained that the Respondent had diluted the earning opportunities for existing
mechanics at the Naperville facility by hiring new mechanics, Rossi came to the Naperville
location to meet with the employee about his complaint. The employee asked Rossi to “get rid
of the guys you just hired,” and the two newly hired mechanics were separated from the
Naperville facility later that week.
On the other hand, until June 2009, the Naperville facility had its own service manager,
Russell Rochacz, who exercised day-to-day supervisory authority there, while Rossi was the
service director at the Lisle facility and supervised the mechanics there. The two facilities had
separate employee handbooks and, prior to June 2009, mechanics from one facility were not
sent to work at the other. Each location had its own sales managers.
In addition to sharing management personnel, Burke Automotive in Lisle and Dodge of
Naperville shared an accounting office. The accounting office was located at the Lisle facility,
but was responsible for the accounting and payroll functions of both facilities. The same three
officials – Ed Burke, Guzzino, and Squires – were authorized to sign paychecks for employees
at both facilities. For purposes of reporting employee compensation to the Internal Revenue
Service, the Respondent listed Burke Automotive as the employer of employees at both Burke
Automotive in Lisle and Dodge of Naperville, and used the same federal employer number for
both. Burke Automotive and Dodge of Naperville also used the same state employer
identification number for state payroll tax purposes. The vacation requests made by employees
of both the Lisle facility and the Naperville facility came to Guzzino’s desk for his approval and
then went to the shared accounting office at the Lisle location. On the other hand, Ed Burke
maintained separate bank accounts for Burke Automotive and Dodge of Naperville and payroll
checks for the two locations were drawn on separate accounts. Both locations were individually
licensed by the State of Illinois and each had its own state sales tax identification number, and,
until June 9, 2009, a unique dealer code assigned by Chrysler.
The record also shows that Burke Automotive and Dodge of Naperville shared facilities
to an extent. This sharing certainly extended to the furniture, equipment, and office space used
for accounting and payroll functions since there is no dispute that a single accounting
department, located at the Lisle facility, performed those functions for both entities. It is also
fair, based on the record here, to infer that Ed Burke, Squires, Guzzino, Rossi, and Belinski – all
of whom had duties at both Burke Automotive in Lisle and Dodge of Naperville – would
sometimes use furniture, phones, and other equipment at the Lisle store while addressing
matters relating to the Naperville location. There was no testimony or suggestion that while
these individuals were physically present at the Lisle facility they avoided all work activities
relating to Dodge of Naperville, and it is facially improbable that they would. Indeed, the record
shows that Squires, who was controller and corporate secretary for both the Lisle facility and the
Dodge of Naperville facility, was physically present at the Lisle facility, not at the Naperville
facility, while working.
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The record shows that Ed Burke would often make sales/purchases between Burke
Automotive in Lisle and Dodge of Naperville. The sales between Burke Automotive and Dodge
of Naperville were made, as Ed Burke put it, in order to “balance inventories” between the two
facilities. He testified: “[W]e would sell cars back and forth to balance inventories amongst
Dodge. If the one store was heavy on Journeys but light on Caravans and the other store was
vice versa, heavy on Caravans and light Journeys, I would sell Journeys to the one store and
Caravans back to the other store.” Tr. 349.
At about the time of the alleged violations, Ed Burke began to drop any pretense of
treating the two facilities as independent enterprises. Most notably, he convinced Chrysler to
let him sacrifice the franchise associated with Dodge of Naperville instead of the franchises
associated with the Lisle location. That action was clearly not in the interests of Dodge of
Naperville as an independent entity, but was, Ed Burke decided, in the interests of the overall
business enterprise. Prior to that – during the period when Burke Automotive in Lisle was
stripped of its franchises – Ed Burke continued to have non-unit mechanics at Burke Automotive
in Lisle perform Chrysler warranty repairs by recording those repairs as having been made by
the Naperville dealership. Once Ed Burke succeeded in obtaining permission to surrender the
Naperville franchise in exchange for the Lisle franchises, he assigned all of Dodge of
Naperville’s accounts receivable to Burke Automotive, even though Dodge of Naperville was not
dissolved as a corporate entity or formally deactivated. In addition, he began using the Dodge
of Naperville dealer code for the Burke Automotive facility in Lisle, and sold Dodge of
Naperville’s remaining inventory to the public through Burke Automotive. Tr. 99-100, 114. As
required by Chrysler, Ed Burke agreed that after 17 months he would move his surviving
Chrysler franchises from the location in Lisle to the location in Naperville after making
renovations to the facility there.
The evidence also shows that the Respondent communicated with the public in ways
that presented the Lisle facility and the Naperville facility as parts of the same business
enterprise. For example, the Respondent’s advertisements for both facilities carried not only the
individual store’s corporate logo, but also, next to that logo, the words “Burke Automotive
Group.” When the Respondent closed the Naperville facility, it posted a sign at that facility
informing the public that “WE HAVE MOVED” and giving the address of the Lisle facility. In
addition, the Respondent posted a sign there stating that it was “OPENING FALL 2010,” and
listing contact information for the Lisle store.
C. Respondent Denies the Unit Mechanics Continued
Employment at the Naperville Location and Offers
Them Non-Union Work at the Lisle Location.
While the unit mechanics were working at the Naperville location, and the Respondent
was complying with the collective-bargaining agreement, the unit members’ benefits included a
health plan with medical, dental, and vision coverage, and a pension plan. Pursuant to the
contract, the Respondent did not require the unit mechanics to make any contribution towards
the Respondent’s costs for either of these plans. In addition, under the Union contract, the unit
mechanics were guaranteed a minimum of 34 paid hours per week at the hourly rate of $29.50,
provided they were present at the Naperville dealership at least 40 hours that week. This
minimum hours guarantee was significant because the mechanics were not paid based on how
many hours they were present, but based on how many hours they “booked” – that is, on the
number of hours worth of work they were assigned and completed during a week. If not for the
minimum hours guarantee, during weeks when there were not enough assignments to keep all
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the mechanics busy, mechanics could find themselves accumulating few paid hours, even if
they were physically present at work for 40 hours or more and completed all their assignments
promptly.11
On Saturday, June 20, 2009, when the unit mechanics arrived for work at the Naperville
facility, Ed Burke, Guzzino and Rossi were present, and informed the mechanics that the facility
was closing and that the mechanics had to remove their toolboxes the following Monday. Ed
Burke told one or more of the unit mechanics that Chrysler was requiring him to build a new
facility at the Naperville site, and that he “was moving everything down” to the Lisle facility. The
unit mechanics could, he said, “come down and put in an application and he would take on as
many” of the unit mechanics “as he could” at the Lisle facility. Adams, an alleged discriminatee,
was one of the unit mechanics who appeared for work at the Naperville facility on June 20, and
spoke with Burke. Marjanovich, the other alleged discriminatee, was not scheduled to work on
June 20, but that morning Rossi contacted him by phone and stated that the Naperville facility
was closed and that he should come the following Monday to retrieve his toolbox and pick up
his last paycheck.12 Similarly, Lein, who was also not scheduled to work on June 20, received a

11 The non-unit mechanics at the Lisle facility had no such minimum guarantee. Thus their
compensation from the Respondent could fall considerably below 34 hours per week during
periods when there was a shortage of work. Rossi testified that “a lot” of the Lisle mechanics
resorted to taking “side jobs” to augment their employment with the Respondent. Tr. 321.
12 I credit Marjanovich’s testimony regarding a call from Rossi on June 20, Tr. 206-07, over
Rossi’s testimony that he did not call any of the unit mechanics, Tr. 306. Marjanovich testified
with certainty and specificity regarding the phone call with Rossi, and the subject matter of that
phone call. His description of what he was told during that call was consistent with the
testimony of the Respondent’s own witnesses regarding what they were telling the mechanics
on June 20. Marjanovich testified matter-of-factly and did not appear inclined to embellish his
account to favor the General Counsel’s case.
I found Rossi a less confident witness on the question of a phone call to Marjanovich, and a
less than fully credible witness in general. Rossi denied making the phone call, but conceded
that he had so many contacts with mechanics that he could not recall every time he talked to the
Naperville mechanics or what he said when they came to work at Lisle. Tr. 319. Moreover, his
testimony that he had not called any of the mechanics that day is contradicted not only by
Marjanovich, but also by Lein, a current employee who also testified that he received a call from
Rossi that day. In my view, Rossi repeatedly strained to deny facts favorable to the General
Counsel. For example, on direct examination, he denied that he had previously seen either of
the two June 23, 2009, correspondences, sent to him by the Union – one in which the Union
requested bargaining, and another in which it requested information. Tr. 308-09. However,
upon further questioning Rossi conceded that he “might have . . . seen” the letter requesting
bargaining, and was not sure if he had seen the letter requesting information, Tr. 315-16. In its
brief, the Respondent concedes that Rossi received the June 23 request for information. Brief
of Respondent at Page 7. Rossi embellished his answers in some instances in order to present
the Respondent’s actions in the most favorable light. For example, when asked whether Ed
Burke had discussed the application form, benefits, and the handbook at a June 26 meeting
with the unit mechanics, Rossi responded “I’m not sure if he said anything about the handbook,
but he did offer everyone a job very politely.” Tr. 320. In other instances, Rossi became
antagonistic in response to questions. For example, when I asked him in what capacity he was
acting when he came to the Naperville store on June 20 and informed unit mechanics that the
store was closing (since he was service manager at the Lisle location, not the Naperville
location) his demeanor became surly and he responded, “I don’t think they would get a porter to
do it, you know. I’m a service manager – common sense.” Tr. 322.
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call from Rossi that day. Rossi stated that Lein had to remove his tools from the Naperville
facility by 2 pm the following Monday, that he could apply for a job at the Lisle facility, and that
the Lisle facility would be a non-union shop.13 Prior to these communications to the unit
mechanics, the Respondent had not given the Union notice or an opportunity to bargain
regarding the closing of the Naperville facility, the change in the unit employees’ work location,
or the effects of those actions.
On June 22, all of the unit mechanics came to the Naperville facility where they loaded
their toolboxes onto a rental truck and removed them from that location.14 The unit mechanics
had not yet been told that they could continue working for the Respondent at the Lisle facility,
and the mechanics did not bring their toolboxes there that day. Unit members Adams,
Marjanovich and Zeka went to the Lisle facility at about 5 pm on June 22 to obtain their
paychecks. While they were there, Rossi gave the unit mechanics applications, benefits forms,
and, in a least one case, an employment-at-will form, and asked the mechanics to complete the
forms and return them to the Respondent. Rossi also provided the unit mechanics with the
employee handbook used at the Lisle facility. When asked about the terms of employment,
Rossi told the unit mechanics they would be coming to the Lisle facility as “new hires,” would
“probably” have to work “weekends and evenings,” and that there would be no Union benefits or
34-hour pay guarantee. Prior to this time, the Respondent had not given the Union notice or an
opportunity to bargain regarding changes in the terms and conditions of employment being
offered to the unit employees.
In letters dated June 22, 2009, signed by Guzzino, and sent to unit mechanics by
overnight mail, the Respondent stated:
Please show up for work immediately at our facility located at 3300 Ogden
Avenue, Lisle, Illinois 60532. We expect your prompt arrival. Should you not
come to work we will assume that you have no interest in a job at our dealership.
On June 23, after receiving this letter, a number of the unit mechanics met with Union
officials Dennis Jawor (directing business representative) and Thomas Gregg (business
representative) to discuss the turn of events at the Naperville facility. The Union officials
prepared letters for Adams and other unit mechanics to deliver to company officials the next

13 Based on his demeanor and the record as a whole, I credit Lein’s testimony about this
conversation, Tr. 247-48, over Rossi’s denial that he called Lein or any of the other unit
mechanics, Tr. 306. As in the case of the phone call to Marjanovich, Lein’s account of what was
said by Rossi during this conversation was consistent with the testimony of the Respondent’s
other witnesses about what they were telling the unit employees. In addition, for the reasons
discussed previously, I found Rossi less than fully credible based on his demeanor and
testimony. While my credibility determination regarding Lein’s testimony is made independently
of the fact that he is a current employee, I nevertheless note that crediting him is consistent with
the Board's view that the testimony of a current employee that is adverse to his employer is
“given at considerable risk of economic reprisal, including loss of employment … and for this
reason not likely to be false.” Shop-Rite Supermarket, 231 NLRB 500, 505 fn. 22 (1977). See
also Jewish Home for the Elderly of Fairfield County, 343 NLRB 1069 fn. 2 (2004), enfd. 174
Fed. Appx. 631 (2d Cir. 2006) and Flexsteel Industries, 316 NLRB 745 (1995), enfd. 83 F.3d
419 (5th Cir. 1996) (Table).
14 The toolboxes used by the mechanics are large – for example Adams’ toolbox, which was
not the largest, was approximately 5 feet tall, 4 feet wide, and 2 1/2 feet deep, and about 1000
pounds in weight.
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day. These letters, signed by Jawor and addressed to Rossi’s attention, made a number of
requests for information and also took the position that the unit mechanics were still employees
of the Naperville facility and, therefore, were still covered by the collective bargaining
agreement. The letter reads as follows:
I am in receipt of your letter dated June 22, 2009, in which you advised our Local
701 members to immediately report to work at your temporary facility located at
3300 Ogden Avenue[, Lisle, Illinois].
Due to the fact that yesterday when the technicians tried to report to work they
were informed by Ray Rossi that they had to fill out applications, they would be
new employees and would receive no benefits, I am requesting the following
information in writing before I advise my members to return to work.
1. Will the technicians from Naperville Dodge be working under the current
collective bargaining agreement dated August 1, 2005 through July 31, 2009.
2. Will the company continue to contribute into the Local 701 Welfare and
Pensions fund at the current contribution rate.
3. Will the Technicians be paid in accordance with the current collective
bargaining agreement.
4. Will the Technicians be paid base pay in accordance with the collective
bargaining agreement.
5. Will each technician have a hoist as required in the collective bargaining
agreement.
Be advised that I have instructed the Technicians not to fill out any paperwork,
due to the fact that they are working for the same employer under the same
collective bargaining agreement and their same dealer code. The only difference
is they are working in a temporary facility.
Adams reported to work on the morning of June 24, and delivered this letter to Rossi at that
time.
On June 23, Jawor also sent a letter by facsimile to Rossi’s attention at the
Respondent’s Lisle facility. That letter repeated some of the same points made in the letter that
Adams had delivered to Rossi, and asked to meet and bargain “as soon as possible” over
issues arising because the “bargaining unit” had “expand[ed]” The letter stated in relevant
part:
It is Local 701’s position that:
1. The technicians from Naperville Dodge will be working under the current
collective bargaining agreement dated August 1, 2005 through July 31, 2009.
2. The company must continue to contribute into the Local 701 Welfare and
Pension Funds at the current contribution rate.
3. The technicians must be paid in accordance with the current collective
bargaining agreement.
4. The technicians must be paid base pay in accordance with the collective
bargaining agreement.
5. Each technician must have a hoist as required by the collective bargaining
agreement.
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There are a number of other issues that need to be discussed when the
bargaining unit expands as it has in this situation so I suggest that we meet to
bargain over such matters. Please let me know when we can meet. I believe the
meeting should take place as soon as possible.
On June 24, 2009, Jawor received a response from counsel for the Respondent. The
Respondent’s letter referenced Jawor’s June 23 communication and stated, inter alia: “It is the
position of my client that Local 701 does not represent a majority of its technicians. I would
suggest that we meet at your offices at 10:00 am this Friday, June 26, to discuss these matters.”
During the work week that began on June 22, many, if not all, of the unit mechanics from
the Naperville facility worked at the Lisle facility. The Naperville mechanics joined the 14 non-
unit mechanics who were already working at the Lisle location. Adams and Marjanovich
presented themselves for work at the Lisle store on Wednesday, June 24. Both worked at the
Lisle facility on June 24, 25 and 26, without being required to complete an application or other
paperwork for the Lisle facility. Although terms for their continued employment had been
informally alluded to earlier, they were not told what those terms would actually be until June 26.
Over the course of the 3-day period when Adams worked at the Lisle store that week, Adams
accumulated a total of 15 “booked hours” of work for which he could be paid. Over the course
of the same 3-day period, Marjanovich accumulated a total of 12.1 “booked hours” for his work
at the Lisle location.
On Friday, June 26, Ed Burke, Guzzino and Rossi met with mechanics who had come to
the Lisle facility from the Naperville facility. Ed Burke informed the mechanics that they were all
being offered employment at the Lisle facility. He told the Naperville mechanics that the Lisle
facility “was a non-union store,” would “never be a union store,” and that if the mechanics “ever
went out on strike it would mean that [they] quit and would not be able to collect
unemployment.”15
Regarding the terms and conditions of employment, Ed Burke told the unit mechanics
that they would no longer receive what they had at the Naperville facility under the collective
bargaining agreement. They would be paid at the same hourly rate as at the Naperville facility
($29.25 per hour), but there would be no minimum hours guarantee. Rather, like the non-unit
mechanics at Lisle, the unit mechanics could now earn considerably less than 34 hours of pay a
week if there were not enough assignments to keep them busy. He stated that the Respondent
would not continue the unit mechanics’ no-employee-contribution health insurance, but that the
mechanics would be permitted to participate in the health plan in place at the Lisle store. The
premiums for this health insurance would be entirely at the employee’s expense. For family
coverage with medical, dental and vision insurance, the employee would have to pay premiums
of between $175 and $200 every week. In addition, the unit employees would no longer be
covered by a pension plan. Instead they would be able to make contributions to a 401(k) plan to
which the Respondent would make matching contributions of no more than $10 a week. Ed
Burke told the Naperville mechanics that, contrary to what Rossi had earlier reported, they
would not be treated as new hires. Instead, they would be credited for service at the Naperville
facility back to the date when the Respondent assumed control of that dealership in 2003. Any

15 I credit Lein’s testimony that Ed Burke made these statements. I considered the fact that
Marjanovich, the other witness for the General Counsel who testified about the June 26
meeting, did not include these statements in his account. However, Marjanovich arrived late
and missed part of the presentation.
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seniority accrued prior to that time would be forfeited.16 Ed Burke further stated that if the
employees chose to quit instead of accepting employment under the terms being offered, he
would not pay them unemployment compensation. Ed Burke testified that at the meeting he
wanted to make clear to the Naperville mechanics that the reason for the June 22 letter was that
the Respondent needed to fill positions at the Lisle facility and could not afford to hold the
employment offers open for “6 weeks.”
Adams was not present for the June 26 meeting, but afterwards Guzzino and Rossi met
with him. Guzzino and Rossi discussed the terms of employment that Ed Burke had described
at the meeting and told Adams that the Respondent was not going to recognize the Union at the
Lisle facility. They also repeated Ed Burke’s warning that if a mechanic did not accept
employment at the Lisle facility under those terms, the Respondent would view him as having
quit and would oppose an application for unemployment insurance.
The Respondent also met with Jawor on June 26. The Respondent’s attorney told
Jawor that the Union no longer had majority support and that the Respondent was going to
withdraw recognition. Jawor responded that the Union’s representation of the Naperville
mechanics should continue, and that the Union would attempt to sign up the mechanics who
had been working at the Lisle facility. The Respondent’s attorney stated that the company was
going to pay the former Naperville mechanics the same wages and benefits as the mechanics
already working at the Lisle facility. Jawor did not consent to this change in the unit members’
terms. Later that day, the Respondent’s attorney sent a letter to Jawor by facsimile, which
stated:
Pursuant to our meeting this morning, this letter is to inform you that due to the
relocation of, and merger with Burke Automotive, recognition of Local 701 at
Naperville Dodge is hereby withdrawn due to lack of majority status.
The Respondent gave the Union no advance notice of the “merger” and “relocation” action
referred to by the Respondent’s counsel in the June 26 communication, and never offered to
negotiate with the Union regarding the effects of that decision. On July 8, 2009, the Union filed
the initial charge, in which it alleged that the Respondent had “unlawfully withdrawn recognition
from the Union and repudiated the collective-bargaining agreement.”
After the Respondent told the Naperville mechanics what their terms and conditions of
employment would be at the Lisle facility, Adams and Marjanovich concluded that they would
not be able to financially afford to work there. Adams and Marjanovich both testified that this
was because under, the new terms, they would have to pay their own health insurance
premiums and would not be guaranteed any minimum number of paid hours per week. Both
men required family coverage, which the record shows would cost up to $200 each week in
premiums Moreover, there were, Adams worried, a large number of mechanics at the Lisle
facility, creating the possibility that there would not be enough work for all of them. As
discussed above, during the 3-day period they were present at the Lisle store from June 24 to
26, Adams and Marjanovich accumulated only 15 and 12.1 paid hours respectively.
Marjanovich testified that, between the health insurance premiums and the rescission of the
minimum hours guarantee, he was concerned that his take-home pay would not be enough to
cover his monthly mortgage payments.

16 This affected the amount of vacation time employees accrued. For example, Lein,
received 4 weeks of vacation per year while at the Naperville facility, but only 2 weeks per year
after being relocated to the Lisle facility.
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On the morning of Monday, June 29, Adams went to the Lisle facility and told Rossi that
he would not work there under the terms the Respondent was offering. Rossi responded that
he “liked” Adams and was “sorry that we hadn’t come to an agreement.” Adams retrieved his
tools and left the facility. Marjanovich also went to the Lisle store on the morning of June 29.
He told Rossi that he could not “turn in my application and accept this employment because it
would be too costly for me, a financial hardship due to the fact that I had just had a newborn son
two months prior and my wife was not working at the time.” Rossi responded that he was “sorry
to see [Marjanovich] go” and “wished” him “luck.”
Adams and Marjanovich both filed for unemployment compensation, and the
Respondent opposed their applications.
D. No Notice to Union
The uncontradicted evidence shows that the Respondent did not give the Union notice
or an opportunity to bargain over decisions affecting the terms and conditions of employment of
unit employees. After Chrysler Group informed Ed Burke that he could not retain the franchises
for his (non-union) store in Lisle, but could retain the franchise for his (unionized) Dodge of
Naperville store, Ed Burke embarked on an effort to convince Chrysler to revive the Lisle
franchises – either in addition to, or instead of, the Naperville franchise. Ed Burke admitted that
he did not give the Union notice or an opportunity to bargain about his ultimately successful
effort to keep the Lisle franchises at the expense of the Naperville franchise. When Chrysler
gave Ed Burke the choice between retaining either the Naperville franchise or the Lisle
franchises, he did not give the Union notice or an opportunity to bargain before choosing to
sacrifice the Naperville franchise at the location where the unit employees worked in order to
revive the franchises at the location in Lisle.
Prior to June 20, when the Respondent informed the unit mechanics that it had closed
the Naperville facility, the Respondent did not give the Union notice or an opportunity to bargain
regarding that change or its effects. Similarly, the Respondent did not give the Union notice and
an opportunity to bargain before the June 22 letter directing the unit employees to report to the
Lisle facility or before the June 26 meeting at which it formally offered the unit mechanics
employment at the Lisle facility and described the changed terms and conditions that it would
provide there. Prior to June 26, when the Respondent notified the Union that “due to the
relocation of, and merger with Burke Automotive, recognition of [the Union] at Naperville Dodge”
was “withdrawn,” the Respondent did not give the Union notice or an opportunity to bargain over
the “relocation” and “merger” or its effects.
E. Information Request
On July 9, 2009, counsel for the Union transmitted a letter to counsel for the Respondent
requesting certain information. That request read in relevant part:
[I]t is the Union’s position that Burke has unlawfully repudiated its collective-
bargaining agreement with the Union as it relates to this bargaining unit. There
are also numerous possible contractual violations related to the events
surrounding the relocation of work to the Lisle facilities. Please provide the
following information:
1. All correspondence between Burke and Chrysler (or any representatives or
subsidiaries of Chrysler) related to the termination of the franchise agreement for
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Burke d/b/a Naperville Jeep/Dodge in Lisle, Illinois, dealer code 2358; and
2. All correspondence between Burke and Chrysler (or any representatives of
subsidiaries of Chrysler) related to the ongoing franchise agreement for Burke
under dealer code 45120.17
The Respondent did not answer the Union’s information request until March 4, 2010. At
that time it stated that no documents existed besides those which had accompanied a position
letter that the Respondent submitted to the Regional Office of the Board on September 8, 2009.
The position letter to the Regional Office made no mention of the Union’s information request
and in no way suggested that the attachments were responsive to the request, but the cover
letter indicates that the Respondent forwarded a copy of the position letter to the Union.
F. Complaint Allegations
The complaint alleges that the Respondent violated Section 8(a)(5) and (1): since June
23, 2009, by failing and refusing to bargain with the Union concerning the effects of its
temporary relocation of the Unit to the Lisle facility; by failing to continue in effect the terms and
conditions of the collective bargaining agreement, repudiating that agreement, and withdrawing
recognition from the Union during the effective period of the collective bargaining agreement
without the consent of the Union; and by failing to provide the Union with information, requested
on July 9, 2009, that is necessary for, and relevant to, the Union’s duties as collective-
bargaining representative. The complaint further alleges that the Respondent violated Section
8(a)(3) and (1) on about June 26, 2009, when it constructively discharged union mechanics
Adams and Marjanovich by requiring them to work without union representation and union
contractual benefits. The complaint also alleges that the Respondent threatened employees in
violation of Section 8(a)(1): on June 20, 2009, when Rossi told employees, by phone, that they
would no longer be unionized upon their temporary transfer to the Lisle facility; on June 22,
2009, when Rossi told employees that they would no longer have any union benefits after their
temporary transfer to the Lisle facility; on June 26, 2009, when Rossi threatened employees that
they would not be receiving any union benefits; and, on about June 26, 2009, when Ed Burke
told employees that they would never have a unionized store and would be discharged if they
ever went on strike.
III. Analysis and Discussion
A. Single Employer Question
The complaint alleges, and the General Counsel argues, that Burke Automotive and
Dodge of Naperville are a single employer, and are jointly and individually liable for the unfair
labor practices alleged. Whether nominally separate entities are a single employer for purposes
of the Act is determined by considering four factors: 1) functional integration of operations; (2)
centralized control of labor relations; (3) common management; and (4) common ownership.
Radio & Television Broadcast Technicians Local 1264 v. Broadcast Service of Mobile, 380 U.S.
255, 256 (1965); Mercy Hospital of Buffalo¸336 NLRB 1282, 1283-84 (2001). The Board has
stated that none of the four factors is controlling as single employer status ultimately depends
on all the circumstances of the case. Richmond Convalescent Hospital, 313 NLRB 1247, 1249
(1994). This inquiry is designed to determine whether the nominally "separate corporations are

17 Until the events at issue here, the dealer code for the Naperville franchise was 45120 and
for the Lisle franchises was 2358. In June 2009, the Respondent began, with the approval of
Chrysler, to use dealer code 45120 for the Lisle facility.
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not what they appear to be, that in truth they are but divisions or departments of a single
enterprise." NLRB v. Deena Artware, Inc., 361 U.S. 398, 402 (1960); NLRB v. Browning-Ferris
Industries, 691 F.2d 1117, 1122 (3d Cir. 1982). “’Single employer’ status ultimately depends on
all the circumstances of the case and is characterized as an absence of an ‘arm’s length
relationship found among unintegrated companies.’” Brown-Ferris, supra. Viewing the facts of
this case through the prism of the relevant factors, I conclude that Burke Automotive and Dodge
of Naperville were operated by Ed Burke as divisions of a single enterprise rather than as
separate entities with an arm’s length relationship.
All four of the factors identified by the Board support finding that Burke Automotive and
Dodge of Naperville are a single employer. The General Counsel has made an extremely
strong showing of common ownership. The evidence establishes that Ed Burke is the sole
owner of Burke Automotive Group and, through that entity, the sole owner of Dodge of
Naperville. Not only is 100 percent of ownership common in the person of Ed Burke, but
ownership is through a common corporate entity.
Regarding common management, the General Counsel also makes an extremely strong
showing. Most of the same individuals hold the same high-level positions at the two entities.
Ed Burke is president of Burke Automotive and also president of Dodge of Naperville. Squires
is corporate secretary for Burke Automotive and also corporate secretary for Dodge of
Naperville. Indeed, the record shows that there are no corporate officers who are not identical
at the two entities. The same individual, Guzzino, is the general manager at Burke Automotive
and also the general manager at Dodge of Naperville. During the period when the Respondent
was actively doing business at both locations, Belinski was the parts manager for both. Squires,
in addition to serving as corporate secretary, is controller for both Burke Automotive and Dodge
of Naperville. Rossi is responsible for overseeing maintenance of the physical plant at both
facilities. Rossi also has personnel responsibilities for both entities, although those
responsibilities are more extensive at the Lisle facility, where he is service director. Notably, Ed
Burke gave Rossi responsibility for training employees at Dodge of Naperville when the
Respondent purchased it in 2003. Rossi also had personnel responsibilities when the
Respondent closed that store in June 2009. In another instance, Rossi was dispatched to
Dodge of Naperville to address a staffing concern raised by one of the Unit mechanics.
The record does show some differences in the management of Burke Automotive and
Dodge of Naperville. The service manager at Dodge of Naperville had day-to-day supervisory
responsibilities there, but no responsibilities at the Lisle store. In addition, each entity had its
own sales managers. Overall, however, these differences weigh lightly on the scale when
compared to the multiple, and generally higher-level, instances of common management
discussed above. Pathology Institute, 320 NLRB 1050, 1061-62 (1996) (finding common
management based on commonality at the shareholder/member and director/trustee level); see
also Sakrete of Northern California, Inc. v. NLRB, 332 F.2d 902, 907 (9th Cir. 1964) (single
employer finding not precluded where commonality of management is only at the highest level),
cert. denied 379 U.S. 961 (1965).
The evidence presented by the parties regarding centralized control of labor relations is
more mixed, but on balance also favors finding that Burke Automotive and Dodge of Naperville
are components of a single employer. Rossi conceded that when he trained employees at
Dodge of Naperville, the Respondent’s intention was that both entities “be married . . .
everything the same.” Guzzino, in his capacity as general manager at both Burke Automotive
and Dodge of Naperville, has active control over labor relations at both. For example, he gives
final approval for the vacation leave of both groups of employees. Guzzino, Ed Burke and
Squires have responsibility for signing the payroll checks of employees at Burke Automotive and
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for signing the payroll checks of employees at Dodge of Naperville. Ed Burke sets the terms
and conditions of employment received by mechanics at Burke Automotive and also signed the
collective-bargaining agreement establishing the terms and conditions of the mechanics at
Dodge of Naperville.
The Respondent argues, and the record shows, that the two entities did not share or
exchange mechanics prior to time of the alleged violations in June 2009. Although that provides
some support for the view that the labor relations were not centralized, it is not the whole story,
and not the most important part of the story in this instance. During the later time period when
the violations are alleged to have occurred – that is, from June 2009 forward – the
Respondent’s labor relations were clearly centralized and the Respondent was treating the unit
mechanics as employees of a single employer that included Dodge of Naperville and Burke
Automotive. For example, shortly after closing the Naperville store, the Respondent told the
unit employees that if they did not immediately report to the Burke Automotive facility in Lisle
they would be considered to have quit and would be denied unemployment compensation. This
is significant because an employee does not quit a job when he or she is laid off by a current
employer and subsequently refuses a new job with a separate employer. Rather, an employee
quits a job when he or she declines to continue employment with the same employer. Not only
did the Respondent make these statements treating the unit mechanics as employees of both
the Naperville facility and the Lisle facility, but it acted on those statements by challenging the
unemployment compensation claims of Adams and Marjanovich after they declined to work at
the Lisle facility under the terms offered. In addition, the Respondent had the Naperville
mechanics begin performing job duties at the Burke Automotive location in Lisle before those
employees had been informed of their actual terms of employment at the Lisle facility or been
formally offered continued employment there. Indeed the Respondent had unit mechanics from
Naperville begin working at the Lisle facility without first obtaining applications from those
mechanics. This behavior is generally more consistent with the way an employer relocates
employees within its divisions, rather than with the way an employer hires from outside the
company.
When, on June 26, the Respondent set forth the terms of employment for the unit
mechanics relocated to the Lisle location, it credited them with seniority for their years of service
at the Naperville store back to the date when the Respondent acquired that facility in 2003. The
fact that the Respondent was crediting employees at Burke Automotive with years working for
Dodge of Naperville is another indicator that it was treating the two facilities as a single
employer with a unified labor relations system. In my view, the Respondent’s actions from June
2009 forward suggest that labor relations for the two nominally separate entities had always
been very centralized. However, even if one views these actions as a departure from the way
the Respondent handled labor relations prior to June, the later period is the more significant one
for purposes of the analysis because it was during that later period when the violations are
alleged to have occurred.
In reaching the conclusion that the evidence regarding labor relations at Burke
Automotive and Dodge of Naperville supports finding that the two were a single employer, I
considered the evidence that each facility has its own employee handbook. However, the
situation where terms and conditions of employment vary between the unionized and non-
unionized components of a single employer is more the rule than the exception, see e.g.,
Illinois-American Water Co., 296 NLRB 715, 720 (1989), enfd. 933 F.2d 1368 (7th Cir. 1991),and
that reality does not suggest, in this case, that such components were separate, arm’s-length,
entities for purposes of the Act.
Lastly, the level of functional integration between Burke Automotive and Dodge of
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Naperville is consistent with finding them to be a single employer for purposes of the Act. As
discussed above, both were wholly owned by Ed Burke, had largely identical management
teams, and engaged in precisely the same business on the same road in neighboring
communities. One telling piece of evidence regarding the functional integration of these two
entities was given by Ed Burke under questioning by his own attorney. Ed Burke testified that
he made sales of vehicles between Burke Automotive and Dodge of Naperville in order to
“balance inventories” between the two locations. The fact that Ed Burke was attempting to
balance inventories between the two entities, rather than making arms length’s transactions in
which each entity considered only its individual interests, strongly suggests that Burke
Automotive and Dodge of Naperville were operating as a single integrated business enterprise.
See Emsing’s Supermarket, 284 NLRB 302, 304 (1987) (finding of single employer status is
supported by propensity to operate both companies “in such a manner that the exigencies of
one would be met by the other” showing that relationship was not arm’s length), enfd. 872 F.2d
1279 (7th Cir. 1989). Similarly, after Chrysler decided to cancel the Burke Automotive
franchises, Ed Burke persuaded Chrysler to permit him to retain those franchises and, instead,
sacrifice the Naperville Dodge franchise – a move that may have been in the interests of Ed
Burke’s overall business enterprise, but cannot be seen as being in the interests of Dodge of
Naperville as an individual entity.
A high level of functional integration is also evidenced by the two entities’ sharing of
facilities, equipment, and personnel. Burke Automotive and Dodge of Naperville had a single
accounting department, which was housed at the Burke Automotive facility in Lisle. At this
centralized accounting office the two entities shared office space, equipment, furniture, and
accounting personnel. Western Union, 224 NLRB 274, 277 (1976) (in determining single-
employer status, Board considers whether there are, inter alia, combined accounting records,
bank accounts, telephone numbers, offices). In addition, as discussed above, the two entities
shared numerous corporate and management officials. This also meant that the two entities
shared facilities and equipment because an official would sometimes perform work relating to
Dodge of Naperville while physically present at the Burke Automotive facility in Lisle.
In addition to sharing facilities, equipment, and personnel, the two facilities shared the
nominally separate franchise identities assigned to them by Chrysler. During the period from
June 9 to 19, when Burke Automotive in Lisle temporarily lacked a franchise, the Respondent
had the non-unit mechanics at the Lisle facility continue making dealer warranty repairs by
reporting the repairs as having been made by Dodge of Naperville. Then, when Ed Burke
succeeded in convincing Chrysler to allow him to surrender the Dodge of Naperville franchise in
exchange for reviving of the Burke Automotive franchises in Lisle, Ed Burke used Burke
Automotive to sell Dodge of Naperville’s remaining inventory to the public, and assigned Dodge
of Naperville’s accounts receivable to Burke Automotive.
Around the time of the alleged violations, the already significant sharing of facilities and
equipment increased greatly. On June 20, Ed Burke announced that he was “moving
everything” from Dodge of Naperville to the Burke Automotive store in Lisle.18 Moreover, Ed

18 The suggestion that Ed Burke was combining the Dodge of Naperville operation with the
Lisle operation, rather than simply closing the Naperville operation, is reinforced by Ed Burke’s
testimony that, as of June 22, he needed to fill positions at the Lisle facility and therefore wanted
the unit mechanics to promptly report for work there. If the Dodge of Naperville operation had
been eliminated, it would not explain the rush to get the unit mechanics started working at the
Lisle facility. However, if the Naperville facility’s operation and workload were being relocated to
the Burke Automotive facility in Lisle, it would explain why Ed Burke felt he needed to quickly
Continued
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Burke promised Chrysler that in 17 months he would renovate the Dodge of Naperville facility
and move his Burke Automotive operation back to the Naperville location from the Lisle facility.
The Respondent did not show that before Ed Burke committed to ultimately moving the
surviving Burke Automotive operation to the Dodge of Naperville location, the two entities
executed lease or sale agreements or had any arm’s length dealings at all regarding Burke
Automotive’s use of the Dodge of Naperville location. It is clear that during this period the
Respondent was engaging in a global sharing of facilities and equipment between Burke
Automotive and Dodge of Naperville. The two entities were not operating at “arm’s length” as
separate entities; rather, Ed Burke was simply drawing whatever resources he could from either
entity in service of the best interests of a single, integrated, business enterprise. See Emsing’s
Supermarket, 284 NLRB at 304 (that fact that two companies are being operated “in such a
manner that the exigencies of one would be met by the other” supports finding single employer
status).
In communications to the public, the Respondent presented Burke Automotive and
Dodge of Naperville as parts of a single integrated enterprise. The newspaper advertisements
that the Respondent ran for the Lisle facility and the Naperville facility identified both dealerships
as part of Burke Automotive. In June 2009, when the Respondent suspended operations at the
Dodge of Naperville location, the notice to consumers that it placed at the facility did not state
that Dodge of Naperville was “closed,” but rather that it had “moved” to the location of Burke
Automotive in Lisle. The fact that the Respondent held itself out to the public as a single
integrated business enterprise further supports finding that it was a single employer within the
meaning of the Act. Southern Interiors, Inc., 319 NLRB 379 (1995) (single employer status
found based, inter alia, on the fact that the entities held themselves out to the public as parts of
a single integrated business enterprise), enfd. 107 F.3d 12 (6th Cir. 1997) (Table). 19
The record does show that there are some respects in which the dealerships have not
been integrated. For example, they use separate bank accounts and lines of credit. However,
to the extent that this evidence provides some support for viewing the two dealerships as
functionally separate, that evidence is not only out-weighed, but also undercut, by the ways in
which the dealerships are functionally integrated. For example, the significance of Ed Burke’s
maintenance of separate bank accounts for the dealerships is reduced where, as here, the level
of functional integration is such that one dealership was used to sell the other’s inventory and
accept assignment of the other’s accounts receivable.
To summarize, consideration of the relevant factors reveals that the relationship
between Burke Automotive and Dodge of Naperville is characterized by the “absence of an
‘arm’s length relationship found among unintegrated companies.’” Brown-Ferris, supra. I
conclude that the two entities are a single employer for purposes of the Act.
_________________________
increase the complement of mechanics at the Lisle facility. The view that the Dodge of
Naperville operation was being merged, rather than eliminated, is also reinforced by the June 26
letter to the Union in which the Respondent itself referenced the “relocation” and the “merger” of
Dodge of Naperville with Burke Automotive in Lisle.
19 In addition to holding itself out the public as a single employer, the Respondent did so in
its June 26 letter to the Union – stating that it had “merged” Dodge of Naperville and Burke
Automotive.
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B. Alleged Violations of Section 8(a)(5)
1. Withdrawal of Recognition
The General Counsel argues that the Respondent acted in violation of its bargaining
obligations under Section 8(a)(5) and (1) of the Act by withdrawing recognition when it relocated
the unit employees from the Naperville facility to the Lisle facility . The record shows that when
the Respondent relocated the six unit mechanics there were already 14 non-unit mechanics
working at the Lisle location. On June 24, 2009, the Respondent notified Jawor of
management’s position that the Union did “not represent a majority of its technicians.”
Subsequently, on June 26, 2009, the Respondent informed the Union in writing that the
company was withdrawing recognition “due to lack of majority status” resulting from the
“relocation” and “merger” of Dodge of Naperville and Burke Automotive. This withdrawal of
recognition occurred during the effective period of the collective bargaining agreement, which
was not set to expire until July 31, 2009.
The Respondent contends that the withdrawal of recognition was lawful because the unit
mechanics were accreted into the larger non-union workforce at the Lisle facility and were no
longer an appropriate unit for bargaining. The General Counsel counters that the Unit retained
a separate identity even after the relocation, and therefore was not accreted into the non-union
workforce. For the reasons discussed below, I conclude that at the time the Respondent
withdrew recognition from the Union, the Unit continued to be an appropriate bargaining unit
with a distinct identity and that the withdrawal of recognition violated the Act.
The Board has ruled that where there is a lengthy history of collective bargaining for a
unit, an employer must continue to recognize the Union even when operational changes result
in unit employees doing the same type of work on the same equipment as non-unit employees
within a broader facility or group. Radio Station KOMO-AM, 324 NLRB 256, 262-63 (1997);
Serramonte Oldsmobile, 318 NLRB 80, 104 (1995), enfd. in relevant part 86 F.3d 227 (D.C. Cir.
1996); Children’s Hospital, 312 NLRB 920, 929 (1993), enfd. sub nom. California Pacific
Medical Center v. NLRB, 87 F.3d 304 (9th Cir. 1996); see also Trident Seafoods, Inc. v. NLRB,
101 F.3d 111, 118 (D.C. Cir. 1996) (“[T]he Board places a heavy evidentiary burden on a party
attempting to show that historical units are no longer appropriate . . . .”); Armco, Inc. v. NLRB,
832 F.2d 357, 363 (6th Cir. 1987) (“long bargaining history . . . alone suggests the
appropriateness of a separate bargaining unit”). Absent “compelling circumstances,” a history
of meaningful bargaining is sufficient to establish the continued appropriateness of a separate
unit, even if other factors support a contrary result. See Radio Station KOMO-AM, 324 NLRB at
262. The bargaining unit at issue in this case is a longstanding one, having been certified in
1989, approximately 20 years before the Respondent withdrew recognition in June 2009. It has
been covered by multiple, successive, collective-bargaining agreements, and the last such
agreement had not reached its expiration date at the time the Respondent withdrew recognition.
After the temporary relocation the unit employees continued to perform the same type of work
for most of the same managers as they had before the relocation. Every member of the
established unit was offered employment at the Lisle facility. In this case, the Respondent has
failed to identify, much less demonstrate the existence of, any “compelling circumstances,” that
would permit withdrawal of recognition based on the temporary relocation of the Naperville unit.
Indeed, given that under the Respondent’s contract with Chrysler the relocation of the unit
employees was to be short-lived, it is hard to imagine how circumstances justifying dissolution
of the established bargaining unit could be found here based on the relocation.
The conclusion that the longstanding Naperville bargaining unit has retained its identity
is further supported by the unique terms and conditions of employment to which the unit
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mechanics are entitled under the collective bargaining agreement. See Mirage Casino-Hotel,
338 NLRB 529, 532 (2002) (differences in wages and employment benefits is a factor which can
support finding that employees share a community of interest); Super K Mart Center, 323 NLRB
582, 588 (1997) (same); Skyline Distributors, 319 NLRB 270, 270 fn.2 and 278 (1995), enfd in
part and remanded 99 F.3d 403 (D.C. Cir. 1996) (same); Serramonte Oldsmobile, 318 NLRB at
80 (same). As discussed previously, under the collective-bargaining agreement a number of the
most important terms and conditions of employment for the unit employees were vastly different
than, and much superior to, those applicable to the Respondent’s non-unit mechanics. The
conclusion that the Unit’s unique terms of employment support finding that the Unit retained its
identity is not affected by the fact that the Respondent unilaterally repudiated the collective
bargaining agreement and imposed non-unit wages and benefits on the unit employees at
approximately the same time as it withdrew recognition. As found below, the contract
repudiation, and unilateral change in wages and benefits were themselves violative of Section
8(a)(5) of the Act. Such unlawful changes by an employer are not considered when determining
whether an established bargaining unit retains its distinct identity since giving weight to such
changes would reward the employer for its unlawful conduct. See Comar, Inc., 349 NLRB 342,
357-58 (2007); Superior Protection, Inc., 341 NLRB 614, 615 fn.5 (2004), enfd. 401 F.3d 282
(5th Cir. 2005), cert. denied 126 S. Ct. 244 (2005); Georgia-Pacific Corp., 329 NLRB 67, 74-75
(1999); Holly Farms, 311 NLRB 273, 279 (1993), enfd. 48 F.3d 1360 (4th Cir. 1995), cert. denied
in pertinent part 516 U.S. 963 (1995).
For the reasons discussed above, I conclude that the represented employees retained a
sufficient community of interest distinct from the unrepresented employees to require continued
recognition even after the Respondent temporarily relocated the unit employees from the
Naperville facility to the Lisle facility in June 2009. Therefore, the Respondent violated the Act
when it withdrew recognition from the Union in June 2009 during the effective period of the
collective bargaining agreement.
2. Repudiation of the Collective Bargaining Agreement
The General Counsel alleges that the Respondent violated section 8(a)(5) and (1) of the
Act by repudiating the collective-bargaining agreement to which it was obligated to adhere, and
unilaterally changing the terms and conditions of employment of the unit employees. The
evidence shows that when the Respondent relocated the unit mechanics from the Naperville
store to the Lisle store, it ceased abiding by the applicable collective-bargaining agreement and
unilaterally changed the terms and conditions of employment without the Union’s consent, and
without affording the Union notice or an opportunity to bargain. By engaging in these activities
the Respondent violated section 8(a)(5) and (1) of the Act. See R. Sabee Co., LLC, 351 NLRB
1350, 1357-58 (2007) (holding that the employer violated Section 8(a)(5) when it moved
employees from one part of a single integrated enterprise to another and repudiated the
employees’ collective bargaining agreement).
The Respondent does not directly address this allegation, but presumably means to
defend based on its argument that the Naperville facility and the Lisle facility are separate
entities and that the Lisle facility, as a new employer for the former Naperville mechanics, was
entitled to impose new terms and conditions of employment. This argument fails because, as
discussed above, Dodge of Naperville and Burke Automotive in Lisle are a single employer.
When that single employer relocated the unit mechanics to another facility within the same
integrated business enterprise, it continued to be bound by the obligations to adhere to the
collective bargaining agreement and bargain with the Union over any changes to terms and
conditions of employment of Unit employees. R. Sabee Co., supra.
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3. Bargaining Over the Effects of Relocating
the Unit Mechanics from Naperville to Lisle
The General Counsel alleges that the Respondent violated Section 8(a)(5) and (1) by
failing and refusing to bargain with the Union concerning the effects of the temporary relocation
of the unit employees from the Naperville facility to the Lisle facility. The Board has held that
an employer is required to bargain over the effects of the relocation of unit work and that
obligation includes bargaining over the relocated workers’ wages, work locations, schedules,
carryover of seniority and other terms and conditions of employment at the new facility, as well
as over the conditions of the transfer. See Comar, Inc., 339 NLRB at 903, 913 (2003); Sea Jet
Trucking Corp., 327 NLRB 540, 547 (1999), enfd. 221 F.3d 196 (D.C. Cir. 2000) (Table); Holly
Farms Corp., 311 NLRB at 279 fn.25; Allied Mills, 218 NLRB 281, 286-87 (1975), enfd. 543 F.2d
417 (D.C. Cir. 1976) (Table), cert. denied 431 U.S. 937 (1977); and Cooper Thermometer Co.,
160 NLRB 1902, 1912 (1966), enfd. 376 F.2d 684 (2d Cir. 1967). I find that by failing and
refusing to bargain over the effects of relocating the unit mechanics to the Lisle facility, the
Respondent violated Section 8(a)(5) and (1). Sea Jet, 327 NLRB at 544; Transmarine
Navigation Corp., 170 NLRB 389 (1968).
The Respondent contends that it did not unlawfully fail to bargain because the relocation
was not a mandatory subject of bargaining inasmuch as the relevant decisions were made by
Chrysler, not the Respondent. This argument fails both as a matter of fact and a matter of law.
The record evidence shows that, contrary to the Respondent’s assertion, it was the Respondent
itself, not Chrysler, that selected the Naperville franchise for elimination. As discussed above,
Chrysler actually selected the Naperville franchise to survive and the Lisle franchises for
elimination. After Ed Burke lobbied to change that decision, Chrysler gave him a choice
between preserving either the franchise at the unionized Naperville store or the franchises at the
Lisle store. At that point Ed Burke made a decision to sacrifice the Naperville franchise in order
to revive the Lisle franchises. According to his own testimony, Ed Burke could have chosen,
instead, to continue selling and servicing new Chrysler-made cars at Dodge of Naperville. 20
Ultimately, Chrysler gave Ed Burke the “go ahead” to stop selling new cars at the Naperville
facility and switch over to selling new cars at the Lisle facility. The evidence shows that
Chrysler did not require Ed Burke to make this change at all, much less require him to make the
change without taking the time to notify and bargain with the Union.
The Respondent’s contention that Chrysler was responsible for relocating the Unit
employees to the Lisle facility also overlooks the fact that Ed Burke could have chosen to keep
the Naperville facility open even without a new car franchise for that location. Ed Burke himself
testified that when one of his dealerships ceased to have a new car franchise, he could continue
to operate that dealership to sell and service used cars. Indeed, he had kept the Lisle facility
open during the period when he lacked a new car franchise for it.
Even if the facts were different, the Respondent’s argument would fail as a matter of law
since the Respondent had an obligation to bargain over the effects of the relocation regardless
of whether the decision to relocate was itself a mandatory subject of bargaining. An employer
“who relocates is required to bargain in good faith with the collective-bargaining representative

20 The Respondent’s assertion that it was Chrysler, rather than Ed Burke, that made the
decision, is contradicted not only by the record evidence, but elsewhere in the Respondent’s
own brief, where it states: “Mr. Burke was given a choice as to which franchises and dealerships
he wanted to keep. He chose to keep the Lisle dealership because it had the most employees
and was licensed to sell the most franchise lines.” Brief of Respondent at Page 30.
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of the unit employees regarding the effects of the relocation on those employees, even where
decisional bargaining is not required as a mandatory subject of bargaining.” Sea Jet Trucking
Corp., 327 NLRB at 544 (emphasis added); see also Holly Farms Corp., 311 NLRB at 278
(while the employer did not have to bargain over the decision to integrate operations, it was
required to bargain about “the various ways in which the integration might affect the
employment status and wages and benefits of [employees]”); Morco Industries, Inc., 279 NLRB
762, 762-63 (1986) (employer was not required to bargain over decision to relocate work from
one facility to another, but nevertheless was required to bargain over layoffs connected to
relocating the work). The Respondent failed to bargain over those effects as it was required to
do.
The Respondent also contends that the Union failed to request, and therefore waived,
effects bargaining. That contention is not persuasive. The waiver of a right under the Act will
not be found in the absence of clear and unambiguous evidence to that effect. Metropolitan
Edison Co. v. NLRB, 460 U.S. 693, 708 (1983). Waiver of the right to bargain based on a
union’s failure to request bargaining will not be found where the union was not given advance
notice of the change and/or where the notice presented the change as a fait accompli. Eby-
Brown Company, 328 NLRB 496, 571-72 (1999); Jaydon, Inc., 273 NLRB 1594, 1601 (1985);
Ciba-Geigy Pharmaceuticals Division, 264 NLRB 1013, 1017-18 (1982), enfd. 722 F.2d 1120
(3d Cir. 1983); National Car Rental System, 252 NLRB 159 (1980); Gratiot Community Hospital
v. NLRB, 51 F.3d 1255, 1260 (6th Cir. 1995); Gulf States Mfg v. NLRB, 704 F.2d 1390, 1397
(5th Cir. 1983). In this case, the Respondent did not give the Union notice of its decision to
relocate the Unit from the Naperville facility prior to closing that facility and telling the unit
employees to report to the Lisle facility. Moreover, the Respondent presented the terms of the
relocation – including the lack of minimum guaranteed hours, and the reduced health insurance
and retirement benefits – as a fait accompli. It did not give the Respondent advance notice of
its intent to make those changes, but rather presented the changes as final and gave no
indication that it was willing to bargain in good faith on the subject. Under the precedent cited
above, even assuming that the Union failed to request effects bargaining, it did not waive its
right to such bargaining since the Respondent did not give advance notice of the changes and
presented the changes as a fait accompli.
At any rate, the record shows that the Union did, in fact, request bargaining. In his June
23, 2009, letter to the Respondent, union official Jawor discussed the closure of the Naperville
store and the relocation of unit mechanics from there to the Lisle store, then asked the
Respondent to “meet to bargain over” matters relating to the resulting expansion of the
bargaining unit. This was just 3 days after the Respondent notified unit employees that the
Naperville facility was closed and only 1 day after the Respondent advised unit employees to
report for work at the Lisle facility immediately. Although the Union’s letter did not use the
words “effects bargaining,” I conclude that, by referencing the relocation and asking to bargain
over matters relating to the expansion of the bargaining unit, the Union adequately requested
bargaining over the effects of the decision to relocate the unit mechanics to the Lisle facility.
Certainly, the Union’s request was sufficient to preclude a finding that the Union clearly and
unambiguously waived effects bargaining, even assuming, contrary to my conclusion, that the
Respondent had given notice sufficient to permit a finding of waiver.
The Respondent also argues that it did not refuse to bargain, but rather was barred from
doing so because it could not legally bargain with a minority Union. That argument is without
merit. First, as discussed above, the Unit retained its distinct identity even after the Naperville
mechanics were relocated to the Lisle facility. Thus the Respondent was required to bargain
regarding the Unit in which the Union had previously demonstrated majority support, not
regarding a new group that included all the mechanics already present at the Lisle dealership.
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Second, under applicable precedent, the Respondent would still have an obligation to bargain
over the effects of the relocation even if one accepts its contention that the Unit ceased to exist
as a result of that relocation. See, e.g., Comar Inc., 349 NLRB at 354 (even if the bargaining
unit had ceased to exist as a result of the relocation of unit work, the employer would still have
an obligation to bargain over the effects of that relocation) .
I conclude that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to
bargain with the Union concerning the effects of its temporary relocation of the Unit from the
Naperville facility to the Lisle facility.
4. Information Request
On July 8, 2009, the Union filed the initial charge, in which it alleged that the Respondent
had “unlawfully withdrawn recognition from the Union and repudiated the collective-bargaining
agreement.” Then, on July 9, 2009, the Union made an information request to the
Respondent for all correspondence between the Respondent and Chrysler regarding the
termination of the franchise for the Lisle facility, and the Respondent’s ongoing franchise
agreement with Chrysler. The information request suggested that this information related to the
Union’s contention that the Respondent had unlawfully repudiated the collective bargaining
agreement and committed contractual violations related to the relocation. As discussed above,
the Respondent did not answer the Union’s request until March 4, 2010 – approximately 8
months after it was made.
An employer’s obligation to bargain in good faith under Section 8(a)(5) of the Act,
includes the obligation to furnish the employees’ bargaining representative, upon request, with
information relevant to and necessary for the performance of the Union’s statutory duty as the
employees’ bargaining representative. NLRB v. Acme Industrial Co., 385 U.S. 432, 435-36
(1967). The duty requires not only that the employer provide the information, but that it do so in
a timely manner. An employer's “unreasonable delay in furnishing … information is as much of
a violation of Section 8(a)(5) of the Act as a refusal to furnish the information at all.” Amersig
Graphics, Inc., 334 NLRB 880, 885 (2001); see also Britt Metal Processing, 322 NLRB 421, 425
(1996), affd. 134 F.3d 385 (11th Cir. 1997) (Table); Leland Stanford Junior University, 307
NLRB 75, 80 (1992).
In its brief, the Respondent does not argue that the information sought was not relevant
to the Union’s charge that the Respondent had unlawfully repudiated the collective bargaining
agreement upon relocating the Unit from the Naperville facility to the Lisle facility. I find that the
information was relevant to that charge, and in particular to the Respondent’s defense that it did
not relocate the Unit at all, but rather was forced by Chrysler to close the Naperville store, and
therefore, to terminate the employment of the unit mechanics there. In addition, the
Respondent makes no attempt to justify its 8-month delay in answering the information request.
The information sought was not voluminous or complex and, on its face, should have been easy
to provide within a matter of days or weeks.
I find that the Respondent unreasonably delayed providing the information sought by the
Union’s July 9, 2009, information request, in violation of Section 8(a)(5) and (1).
C. Alleged Violations of Section 8(a)(1)
The General Counsel argues that at the time the unit employees were relocated to the
Lisle store, the Respondent’s officials made various statements that constituted threats in
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violation of Section 8(a)(1). The record shows that on June 20, 22, and 26, after turning
employees away from the Naperville dealership, officials of the Respondent informed the unit
mechanics that they could work at the Lisle dealership, but that: they would no longer have
union benefits; the Lisle dealership was not and would never be a union facility; and that if the
unit mechanics engaged in a strike it would mean that they “quit and would not be able to collect
unemployment.” For the reasons discussed above, contrary to the statements of the
Respondent’s officials, the unit mechanics continued to be entitled to union benefits and
representation after being temporarily relocated to the Lisle facility.
The General Counsel cites caselaw holding that an employer violates Section 8(a)(1)
when it tells employees who are entitled to union benefits that they will no longer receive them,
James Heavy Equipment Specialists, Inc., 327 NLRB 910, 913 (1999), states that the employer
is not, and will never be, a union operation, Alpine Coal Co., 150 NLRB 445, 449-50 (1964), and
tells employees that they will be discharged if they engage in a strike, Insta-print, Inc., 343
NLRB 368, 375-76 (2004), International Total Services, 270 NLRB 645, 649 (1984). In its brief,
the Respondent contends that the evidence does not show that its officials made the allegedly
threatening statements, however, it makes no substantial argument that such statements would
have been lawful if they were made. Since I conclude that the Respondent’s officials made the
of statements set forth above, and since those statements are violations of Section 8(a)(1)
under the precedent cited by the General Counsel, I find that a violation has been established.
I find that, in June 2009, the Respondent threatened unit employees in violation of
Section 8(a)(1) by telling them that they would no longer receive union benefits, that their
continued employment would be in a non-union shop, that the shop would never be unionized,
and that if the unit employees engaged in a strike their employment would be terminated and
they would be unable to receive unemployment compensation.
D. Alleged Constructive Discharges in Violation of Section 8(a)(3) and (1)
The General Counsel argues that the Respondent constructively discharged mechanics
Adams and Marjanovich in violation of Section 8(a)(3) and (1). At the time of the relocation,
Adams and Marjanovich had worked for the Respondent at the Naperville store for 5 and 10
years respectively. Adams had been a union member for about 24 years and Marjanovich for
about 10 years. On June 26, Ed Burke informed the unit mechanics of the conditions of their
post-relocation employment with the Respondent. He stated that the employees would not be
represented by the Union, that the facility would never be unionized, and that the Respondent
would no longer provide them with the terms set forth under the collective bargaining
agreement. The Respondent would, he said, not honor the unit mechanics’ contractual terms,
such as the 34-hour weekly pay guarantee, and the provision of health insurance and a pension
plan at no cost to the employee.
After the June 26 meeting, Adams and Marjanovich both decided that they could not
afford to continue their employment for Respondent under the terms being offered. During the 3
days when Adams and Marjanovich had worked at the Lisle facility they had each accumulated
an average of just 4 to 5 paid hours per day. Both also required family health insurance, which
the Respondent was only making available at a cost to the employee of approximately $600 to
$800 per month.21 On June 29, Adams and Marjanovich both informed the Respondent that

21 Lein, a unit mechanic who continued to work for the Respondent, testified that he was
able to avoid the health insurance premiums at the Lisle store because he had coverage
through his wife’s employer.
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they were declining further employment given the terms it was imposing at the Lisle facility.
“[U]nder the Hobson’s Choice line of cases, an employee’s voluntary resignation will be
considered a constructive discharge when an employer conditions the employee’s continued
employment on the employee’s abandonment of his or her Section 7 rights and the employee
quits rather than comply with the condition.” Intercon I (Zercom), 333 NLRB 223 (2001), citing
Hoerner Waldorf Corp., 227 NLRB 612 (1976). Under this constructive discharge standard,
“[e]mployees who quit work as a consequence of an employer’s unlawful withdrawal of
recognition from their collective-bargaining representative and unilateral implementation of
changes in their terms and conditions of employment have been constructively discharged.”
Goodless Electric Co., 321 NLRB 64, 67-68 (1996), enf. denied on other grounds 124 F.3d 322
(1st Cir. 2002), citing Evans Service Co., 285 NLRB 80, 81 (1987) and Superior Sprinkler, Inc.,
227 NLRB 204 (1976); see also James Heavy Equipment Specialists, 327 NLRB at 914 (an
employee who quit because of the impact that his employer’s unlawful actions had on his union
pension was constructively discharged). In the instant case, Adams and Marjanovich resigned
their employment as a consequence of the employer’s unlawful withdrawal of recognition,
repudiation of the collective bargaining agreement, and unilateral imposition of non-union terms
and conditions of employment.
The Respondent contends that constructive discharge has not been established
because the record does not show that either Adams or Marjanovich attempted to organize the
Lisle facility for the Union during the 3 days they worked there. This argument misses the point.
As discussed above, Adams and Marjanovich were already entitled to continued union
representation at the Lisle facility, and the Respondent unlawfully withdrew that recognition and
made unilateral changes, then required Adams and Marjanovich to accept that unlawful conduct
as a condition of continued employment. Under the Hobson’s Choice line of cases, Adams and
Marjanovich were constructively discharged when they chose to resign rather than continue
employment under such circumstances.
I find that the Respondent constructively discharged Adams and Marjanovich on June
29, 2009, in violation of Section 8(a)(3) and (1) of the Act.
Conclusions of Law
1. Dodge of Naperville, Inc. and Burke Automotive Group, Inc., d/b/a Naperville
Jeep/Dodge constitute a single employer for purposes of the Act and are jointly and severally
liable for the violations of the Act found in this decision.
2. Respondent Dodge of Naperville, Inc. and Respondent Burke Automotive Group, Inc.
d/b/a Naperville Jeep/Dodge, both individually and as a single employer, are employers
engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act.
3. Automobile Mechanics Local No. 701, International Association of Machinists and
Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the
Act.
4. The Respondent violated Section 8(a)(5) and (1) of the Act: in June 2009 by
withdrawing recognition from the Union as the exclusive collective bargaining representative of
employees in the bargaining unit during the effective period of the collective bargaining
agreement; in June 2009 by repudiating the collective-bargaining agreement with the Union and
unilaterally changing the terms and conditions of employment of bargaining unit employees; by
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failing and refusing to bargain with the Union concerning the effects of its temporary relocation
of the bargaining unit; and by unreasonably delaying the provision of information sought by the
Union’s July 9, 2009, information request.
5. The Respondent threatened bargaining unit employees in violation of Section 8(a)(1)
in June 2009 by telling them that they would no longer receive Union benefits, that their
continued employment would be in a non-union shop, that the shop would never be unionized,
and that if the unit employees engaged in a strike their employment would be terminated and
they would be unable to receive unemployment compensation.
6. The Respondent violated Section 8(a)(3) and (1) of the Act on June 29, 2009, by
constructively discharging unit employees Robert Adams and Mike Marjanovich.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. In particular, the Respondent should be required to offer
Adams and Marjanovich reinstatement and make them whole for any loss of earnings and other
benefits, computed on a quarterly basis from the date of the constructive discharge to the date
of a proper offer of reinstatement, less any net interim 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).
Having found that the Respondent violated Section 8(a)(5) and (1) by withdrawing
recognition from the Union and refusing to bargain in good faith, I recommend that the
Respondent be ordered to meet, on request, with the Union and bargain in good faith
concerning the terms and conditions of employment for the employees in the Unit and, if an
understanding is reached, reduce the agreement to writing and sign it. I also recommend that
the Respondent be ordered to bargain in good faith regarding the effects of the temporary
relocation of the unit employees.
I recommend that the Respondent be ordered to revoke the unilateral changes the
Respondent made to the terms and conditions of employment of unit employees and restore the
terms and conditions that existed under the most recent collective-bargaining agreement, until
such time as an agreement is reached for a new collective-bargaining agreement or good faith
negotiations result in a lawful impasse. In addition, I recommend that the Respondent be
ordered to make the Unit employees whole for any losses of wages, health insurance benefits,
vacation pay, pension benefits, and other benefits they may have incurred as a result of the
unilateral changes, as set forth in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444
F.2d 502 (6th Cir. 1971). The Respondent should also be ordered to remit all payments it owes
to health care, pension, and other funds, with interest as provided in Merryweather Optical Co.,
240 NLRB 1213 (1979), and to make the employees whole for any expenses they may have
incurred as a result of the Respondent's failure to make such payments, as set forth in Kraft
Plumbing & Heating, 252 NLRB 891 (1980), enfd. 661 F.2d 940 (9th Cir. 1981). In addition, the
Respondent should be ordered to continue such contributions and otherwise honor the terms of
the most recent collective-bargaining agreement until it negotiates in good faith with the Union
to a new contract or a bona fide impasse. Crest Beverage Co., 231 NLRB 116, 120 (1977).
The General Counsel urges that the Board’s current practice of awarding only simple
interest on backpay and other monetary awards be replaced with the practice of compounding
interest. The Board has considered, and rejected, this argument for a change in its practice.
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Cadence Innovation, LLC, 353 NLRB No. 77, slip op. at 1 fn.1 (2009); Rogers Corp., 344 NLRB
504 (2005). I am bound to follow Board precedent on the subject. See Hebert Industrial
Insulation Corp., 312 NLRB 602, 608 (1993); Lumber and Mill Employers Association., 265
NLRB 199 fn. 2 (1982), enfd. 736 F.2d 507 (9th Cir. 1984), cert. denied 469 U.S. 934 (1984);
Los Angeles New Hospital, 244 NLRB 960, 962 fn. 4 (1979), enfd. 640 F.2d 1017 (9th Cir.
1981). Therefore, the merits of the General Counsel's argument in favor of compounding
interest are for the Board to consider, not me.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended Order.22
ORDER
The Respondent, Dodge of Naperville, Inc. and Burke Automotive Group, Inc., d/b/a
Naperville Jeep/Dodge a single employer, Lisle, Illinois, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with the Automobile Mechanics Local No.
701, International Association of Machinists and Aerospace Workers, AFL-CIO (the Union) as
the exclusive collective-bargaining agent of employees in the Dodge of Naperville bargaining
unit (unit employees). The bargaining unit includes all technicians, apprentices, lube rack
technicians, and semi-skilled technicians who were employed at the Respondent’s facility in
Naperville, Illinois, (the Naperville facility) immediately prior to the June 2009 relocation of
employees to the Respondent’s facility in Lisle, Illinois, (the Lisle facility) but excludes all office
clerical employees and guards, professional employees and supervisors as defined in the Act.
(b) Withdrawing recognition from the Union as the exclusive collective bargaining agent
of the unit employees as a consequence of the June 2009 relocation of operations and
employees from the Naperville facility to the Lisle facility.
(c) Repudiating the most recent collective bargaining agreement covering the unit
employees.
(d) Telling the unit employees that they no longer work in a union shop and that the
dealership will never be a union shop.
(e) Telling the unit employees that it does not recognize the Union as their collective
bargaining representative.
(f) Constructively discharging unit employees by requiring them to work without union
representation and under unilaterally changed terms and conditions of employment.
(g) Making unilateral changes without notice to and bargaining with the Union regarding
the terms and conditions of employment of unit employees.

22 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 purposes.
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(h) Refusing to meet and bargain in good faith with the Union with respect to the effects
on the unit employees of the June 2009 relocation of operations and employees from the
Naperville facility to the Lisle facility.
(i) Failing to provide, and/or unreasonably delaying the provision of, information
requested by the Union that is relevant and necessary for the Union to fulfill its role as the
collective bargaining representative of unit employees.
(j) 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 effectuate the policies of the Act.
(a) Upon request, bargain in good faith with the Union as the exclusive collective-
bargaining representative of unit employees concerning terms and conditions of employment
and, if an understanding is reached, embody the understanding in a signed agreement.
(b) Apply and restore the terms and conditions of employment that were applicable to
the unit employees under the most recent collective bargaining agreement covering the unit
employees, until such time as the Union and the Respondent reach agreement for a new
collective-bargaining agreement or a lawful impasse based on good faith negotiations.
(c) Revoke the unilateral changes the Respondent made to the terms and conditions of
unit employees since the unlawful repudiation of the collective-bargaining agreement.
(d) Make the unit employees whole for losses of wages and other benefits they suffered
as result of the Respondent’s failure to abide by the terms of the collective bargaining
agreement, including by reimbursing employees for medical premiums, medical expenses, and
other expenses they incurred as a result of such failure, with interest, as provided in the remedy
section of this decision.
(e) Remit all payments to health care, pension, and/or other funds, that it was required to
make under the most recent collective bargaining agreement with the Union, but which it failed
to make, as set forth in the remedy section of this decision.
(f) Bargain in good faith with the Union regarding the effects on unit employees of the
relocation of operations and employees from the Respondent’s Naperville facility to its Lisle
facility.
(g) Make the unit employees whole for any losses they suffered as a result of the
Respondent’s failure and refusal to bargain with the Union regarding the effects of the relocation
of operations and employees from the Naperville facility to the Lisle facility.
(h) Within 14 days from the date of the Board’s Order, offer Robert Adams and Mike
Marjanovich full reinstatement to their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to their seniority or any other rights or
privileges previously enjoyed.
(i) Make Robert Adams and Mike Marjanovich whole for any loss of earnings and other
benefits suffered as a result of their being constructively discharged, with interest, in the manner
set forth in the remedy section of the decision.
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(j) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(k) Within 14 days after service by the Region, post at its facilities in Lisle, Illinois, and
Naperville, Illinois, copies of the attached notice marked “Appendix.”23 Copies of the notice, on
forms provided by the Regional Director for Region 13, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous 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 and former unit employees employed by the Respondent at any
time since June 1, 2009.
(l) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C. August 2, 2010
____________________
PAUL BOGAS
Administrative Law Judge

23 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD–40–10
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 behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT fail and refuse to bargain in good faith with the Automobile Mechanics Local No.
701, International Association of Machinists and Aerospace Workers, AFL-CIO (the Union) as
the exclusive collective-bargaining agent of employees in the Dodge of Naperville bargaining
unit (unit employees). The Dodge of Naperville bargaining unit includes all technicians,
apprentices, lube rack technicians, and semi-skilled technicians who were employed at our
facility in Naperville, Illinois, (Naperville facility) immediately prior to the June 2009 relocation of
employees to our facility in Lisle, Illinois, (Lisle facility) but excludes all office clerical employees
and guards, professional employees and supervisors as defined in the Act.
WE WILL NOT withdraw recognition from the Union as the exclusive collective bargaining agent
of the unit employees due to the June 2009 relocation of operations and employees from the
Naperville facility to the Lisle facility.
WE WILL NOT repudiate the most recent collective bargaining agreement that we entered into
with the Union, and which covers unit employees.
WE WILL NOT tell unit employees that they no longer work in a union shop and that the
dealership will never be a union shop.
WE WILL NOT tell unit employees that we do not recognize the Union as their collective
bargaining representative.
WE WILL NOT constructively discharge unit employees by requiring them to work without union
representation and under unilaterally changed terms and conditions of employment.
WE WILL NOT make unilateral changes, without notice to and bargaining with the Union,
regarding the terms and conditions of employment of unit employees.
JD–40–10
WE WILL NOT refuse to meet and bargain in good faith with the Union with respect to the
effects on the unit employees of the June 2009 relocation of operations and employees from the
Naperville facility to the Lisle facility.
WE WILL NOT fail to provide and/or unreasonably delay providing, information requested by the
Union that is relevant to and necessary for the Union to fulfill its role as the collective bargaining
representative of unit employees.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed to you by Section 7 of the Act.
WE WILL, upon request, bargain in good faith with the Union as the exclusive collective-
bargaining representative of unit employees concerning terms and conditions of employment
and, if an understanding is reached, embody the understanding in a signed agreement.
WE WILL apply and restore the terms and conditions of employment that were applicable to the
unit employees under the most recent collective bargaining agreement covering the unit
employees, until such time as we reach agreement with the Union for a new collective-
bargaining agreement or a lawful impasse based on good faith negotiations.
WE WILL revoke the unilateral changes we made to the terms and conditions of unit employees
since the unlawful repudiation of the collective-bargaining agreement.
WE WILL make the unit employees whole for losses of wages and other benefits they suffered
as a result of our failure to abide by the terms of the collective bargaining agreement, including
by reimbursing employees for medical premiums, medical expenses, and other expenses they
incurred as a result of such failure, with interest.
WE WILL remit all payments to health care, pension, and/or other funds, that we were required
to make under the most recent collective bargaining agreement with the Union, but which we
failed to make.
WE WILL, upon request by the Union, bargain in good faith regarding the effects on unit
employees of the relocation of operations and employees from the Naperville facility to the Lisle
facility.
WE WILL make the unit employees whole for any losses they suffered as a result of our failure
and refusal to bargain with the Union regarding the effects of the relocation of operations and
employees from the Naperville facility to the Lisle facility.
WE WILL, within 14 days from the date of this Order, offer Robert Adams and Mike Marjanovich
full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights or privileges previously enjoyed.
JD–40–10
WE WILL make Robert Adams and Mike Marjanovich whole for any loss of earnings and other
benefits resulting from their discharge, less any net interim earnings, plus interest.
Dodge of Naperville, Inc. and
Burke Automotive Group, Inc.
d/b/a Naperville Jeep/Dodge
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
200 West Adams Street, Suite 800
Chicago, Illinois 60606-5208
Hours: 8:30 a.m. to 5 p.m.
312-353-7570.
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 ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 312-353-7170.