Royal Midtown Chrysler Plymouth, Inc.

National Labor Relations Board - Board Decisions

Sep 29, 1989

296 N.L.R.B. 1039 (N.L.R.B. 1989)

ROYAL MIDTOWN CHRYSLER PLYMOUTH
Royal Midtown Chrysler Plymouth , Inc. and Dis-
trict 9, International Association of Machinists
and Aerospace Workers, AFL-CIO and Auto-
motive, Petroleum and Allied Industries Union
Local No. 618, affiliated with International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America, AFL-CIO.'
Cases 14-CA-17815 and 14-CA-17834
September 29, 1989
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On August 12, 1985, Administrative Law Judge
Elbert D. Gadsden issued the attached decision in
this proceeding. The Respondent filed exceptions
and a supporting brief. On May 1, 1986, the judge
filed the attached supplemental decision in this pro-
ceeding.2 The Respondent and the General Coun-
sel filed exceptions and supporting briefs. The Re-
spondent also filed a motion to strike sections A
and B of the judge 's supplemental decision. 3
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision, the sup-
plemental decision , and the record in light of the
exceptions and briefs and has decided to affirm the
judge 's rulings , findings ,4 and conclusions only to
the extent consistent with this Decision and Order.
' On November 1, 1987, the Teamsters International Union was read-
mitted to the AFL-CIO. Accordingly, the caption has been amended to
reflect that change
2 The Board remanded this case to the judge for further consideration
of whether the Respondent violated Sec 8(a)(5) and (I) of the Act by
failing to recognize and bargain with the Machinists and whether the Re-
spondent violated Sec . 8(a)(1) of the Act by telling an employee during a
preemployment interview that the Respondent would operate a nonunion
shop.
3 In secs. A and B, the judge made additional findings concerning his
conclusion in the original decision that the Respondent violated Sec
8(a)(5) and (1) of the Act by failing and refusing to recognize and bargain
with the Teamsters The Board did not request these additional findings
in its remand order In view of the discussion below concerning the Re-
spondent 's obligation to bargain with the Teamsters , we find it unneces-
sary to pass on the judge 's additional findings in his supplemental deci-
sion or on the Respondent 's motion to strike.
4 The Respondent has excepted to some of the judge's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge 's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 ( 1950), enfd 188 F2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings
We agree with the judge that the Respondent violated Sec . 8(a)(1) of
the Act when , as the credited testimony shows , its agent John Van
Hoogstraat told employee Jere Tyrer during a preemployment interview
that the Respondent 's operation would "be a nonunion shop" While
statements to the effect that an employer has a nonunion work force may
sometimes be merely descriptive and not unlawful, Van Hoogstraat's
statement , given its context , had a reasonably foreseeable coercive
impact The Respondent had agreed to interview all the predecessor's
1039
1. The judge found , inter alia, that the Respond-
ent violated Section 8(a)(5) and (1) of the Act by
failing and refusing to recognize and bargain with
the Charging Party Teamsters and the Charging
Party Machinists . For the reasons set forth below,
we agree with the judge's findings concerning the
Machinists, but find, contrary to the judge, that the
Respondent did not violate the Act by refusing to
bargain with the Teamsters.5
The facts are set forth in detail in the judge's de-
cision . Briefly , from November 1982 until early
1984, R . Michael Sheahan and Christopher Blu-
meyer operated Quality Chrysler Plymouth Sales,
Inc. (Quality). The Teamsters and Machinists were
parties to separate contracts with Quality covering
parts and delivery employees and mechanics, re-
spectively, which expired on July 31, 1984. In
early 1984, Quality experienced financial problems
and Sheahan purchased Blumeyer 's interest in
Quality and became its sole owner.
On December 7, 1984, Harold Arbeitman and
Edwin Sapot purchased Quality from Sheahan and
changed the name to Royal Midtown Chrysler
Plymouth , Inc. (the Respondent). Sapot and Ar-
beitman became co-owners and president and vice
president , respectively. By December 14, 1984, the
Respondent had hired four of the five employees
previously employed in the predecessor employer's
Machinists unit and three of the four employees
previously employed in the predecessor 's Team-
sters unit.6
employees who it knew were represented by the Union . By stating un-
equivocally that the Respondent was going to operate a nonunion shop,
Van Hoogstraat conveyed the message that , regardless of the circum-
stances , the Respondent would refuse to bargain with the employees' col-
lective-bargaining representative Further, the manner in which the state-
ment was made in the hiring interview implicitly invited a response from
the employee concerning whether he had any objection to such condi-
tions The Board has recognized that statements of this kind made in em-
ployment interviews may amount to coercive interrogation, even in the
absence of threats See Groves Truck & Trailer, 281 NLRB 1194, 1201
(1986) We also note that in this case , the implications of Van Hoog-
straat's statement in the interview were reinforced both by the subsequent
conduct of Service Manager William Pinkley , who not only inquired
about the union sentiments of the machinists , but also sought to give
them unsolicited assistance in withdrawing from the Union and by the
Respondent 's subsequent unlawful refusal to bargain with the Machinists
5 We find no merit in the Respondent 's contention that the two bar-
gaining units are not appropriate units for bargaining We note that the
Respondent failed to present any evidence at the hearing to support its
contention that the units are not appropriate and that it offers only a
simple assertion to support its claim
6 The Respondent continued operations immediately after taking over
Quality. There was no hiatus in operations and there is no claim that the
Respondent intended to expand the work force in either unit Thus, the
Respondent intended to employ the same number of employees in each
unit that were employed by Quality Two of the three employees in the
Teamsters unit were hired on December 7 and the other , Ronald Payne.
was hired on December 14 Payne served as parts manager for both
Quality and the Respondent and the judge included him in the unit
Payne was terminated on December 26, 1984 . The Respondent claims
that Payne and Donald Miller, hired to replace Payne , should not be in-
cluded in the unit because they were /are statutory supervisors We find it
Continued
296 NLRB No. 135
1040 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On January 9, 1985, representatives from the
Teamsters and the Machinists requested that Ar-
beitman recognize and bargain with their respec-
tive units . The Respondent refused these requests
and also failed to respond to a followup letter
dated January 9 , 1985 , sent by the Machinists rep-
resentative . On January 9, 1985 , it is undisputed
that a majority of employees in the Machinists unit
were former employees of Quality and that of the
four employees in the Teamsters unit , only one had
been previously employed by Quality.
We agree with the judge's finding that the Re-
spondent is a successor to Quality based on a sub-
stantial continuity in the employing industry.'
The judge further found that the Respondent
was obligated to bargain with the Machinists and
Teamsters on, and subsequent to, the change in
ownership on December 7, 1984, because a repre-
sentative complement of the Respondent's work
force was on the job and a majority of those em-
ployees in each unit were former employees of
Quality.
2. The Respondent contends in its exceptions,
inter alia, that the judge applied an incorrect date
for determining when a majority existed . Accord-
ing to the Respondent, a majority exists "when
demand for bargaining has been made and a repre-
sentative complement is on the job ." The Respond-
ent claims that , therefore , the applicable date for
determining when the bargaining obligation at-
taches in this case is January 9, 1985 , when the
demand for bargaining was first made . Since on
that date only one of the four unit employees was a
former employee of Quality , the Respondent con-
tends that it has no obligation to bargain with the
Teamsters. We find merit in the Respondent's argu-
ment.
Successorship does not automatically carry with
it the obligation to bargain with the union that rep-
resented the predecessor 's employees. Nor does the
fact that the union represents a majority of the suc-
cessor's employees in an appropriate unit operate
unnecessary to pass on Payne 's and Miller's status because such a deter-
mination would not change the result in this case.
The judge found that William Pinkley , one of the Quality Machinists-
unit employees hired by the Respondent , became a supervisor on being
hired by the Respondent This finding is consistent with the parties ' stipu-
lation that Pinkley, who was the service manager for the Respondent,
was a supervisor within the meaning of Sec 2(11) of the Act In addition,
we note the judge's finding , supported by the record , that service manag-
ers had traditionally been excluded from the Machinists unit. The Re-
spondent excepted to the judge 's finding in his supplemental decision that
Pinkley should be included in the unit In light of the parties ' stipulation
that Pinkley was a supervisor , the judge 's finding that he was a supervi-
sor, and the past practice regarding exclusion of service managers from
the unit, we find merit in the Respondent 's exception and exclude Pinkley
from the unit This does not affect the finding that a majority of the em-
ployees in that unit on January 9, 1985 , were former employees of Qual-
ity
r See Fall River Dyeing Corp. Y. NLRB, 482 U S 27 ( 1987).
alone to invoke the bargaining obligation ; and this
is so even when the successor has attained a "sub-
stantial and representative complement" of employ-
ees. The bargaining obligation-albeit potentially
present when successorship and representative
complement are established-must be triggered by
a demand for recognition or bargaining .8 It fol-
lows, therefore, that the determination of whether
the successor has incurred a bargaining obligation
must be assessed at that time rather than when
successorship takes place . Of course, if a demand is
made concurrent with the establishment of succes-
sorship or the attainment of a representative com-
plement , or, even prematurely but is continuing,
the obligation will attach upon the occurrence of
such events. But where no demand is made until
some time after successorship and representative
complement have occurred, the obligation will rise
or fall depending on the union 's representation
among the unit employees at the time of its
demand .9 With these principles in mind , we decide
the issue concerning the Teamsters' claim.
Although the Respondent employed a represent-
ative complement of employees in the Teamsters
unit on December 14, 1984, and a majority of these
employees were former employees of Quality, no
demand for bargaining was made at that time. It
was not until January 9, 1985 , that the Teamsters
made a demand for recognition and bargaining. At
this time , only one of four unit employees was a
former employee of Quality. Therefore , in assessing
the Respondent's bargaining obligation with the
Teamsters under these circumstances , we conclude
that the Respondent was not obligated to recognize
and bargain with the Teamsters. Accordingly, we
shall dismiss the complaint allegation that the Re-
8 See Fall River Dyeing Corp. Y. NLRB, 482 U S at 46 , Grico Corp, 265
NLRB 1344, 1345 ( 1982), Hudson River Aggregates, 246 NLRB 192 fn 3
(1979), enfd . 639 F.2d 865 (2d Cir 1981 ), Bengal Paving Co., 245 NLRB
1271, 1272 (1979)
8 As the Supreme Court noted in Fall River, the Court in NLRB v.
Burns Security Services , 406 U S 272 ( 1972), did not have to consider
when the successor's obligation to bargain arose . In Fall River, the Court
agreed with the Board and the Court of Appeals for the First Circuit that
the so-called substantial and representative complement rule fixes "the
moment when the determination as to the composition of the successor's
workforce is to be made " Fall River, 482 U S at 47 In Fall River, the
union demanded recognition before the time such a complement was
reached and the Court , therefore, was not faced with the situation pre-
sented here , i e, a demand made after a union had lost majority status in
a representative complement of unit employees . Nevertheless, in finding
that the Board's "continuing demand " rule is reasonable , the Court
stated . "[t]he successor's duty to bargain at the 'substantial and represent-
ative complement ' date is triggered only when the union has made a bar-
gaining demand " (Emphasis added ) Id at 46 . Although these statements
of the Court did not address the majority status of the union in Fall River
at the time of the demand , a full reading of the Court 's opinion and the
principles enunciated therein presume that the union enjoyed majority
status among the unit employees at the time the demand for bargaining
matured.
ROYAL MIDTOWN CHRYSLER PLYMOUTH
spondent violated Section 8(a)(5) and (1) of the Act
by refusing to bargain with the Teamsters. i o
3. The Respondent does not dispute the finding
that a majority of employees in the Machinists unit
were former employees of Quality. Instead , the Re-
spondent contends that its refusal to recognize and
bargain with the Machinists is based on a good-
faith doubt as to the majority status of that unit.
The judge failed to address this issue in his original
decision and then rejected the Respondent's con-
tentions in his supplemental decision . We agree
with the judge 's findings that the Respondent failed
to establish that it had sufficient objective consider-
ations to justify a good-faith doubt as to the major-
ity status of the Machinists.
In order to establish a good-faith doubt as to ma-
jority status the evidence must demonstrate a clear
intention by the employees not to be represented
by the union . Parkview Furniture Mfg. Co., 284
NLRB 947 at 972 (1987). Here, the Respondent
relies on Pinkley 's testimony that three of the four
employees in the Machinists unit stated that they
did not desire union representation . Initially, we
note that Pinkley's comment to Arbeitman that the
1° In his original decision the judge interpreted Canterbury Villa, 271
NLRB 144 (1984), to hold that a bargaining demand is not needed to
trigger the bargaining obligation and that the only appropriate date for
determining majority status is when the successor employer employs a
representative complement of the predecessor's employees. It appears
that the judge misinterpreted Canterbury Villa and failed to take into ac-
count the particular facts of that case
In Canterbury Villa, the alleged successor employer contested the
Board 's certification of the union pursuant to an election conducted
among the predecessor 's employees . The union had won the election and
the predecessor , Mary Kenny, filed objections. On March 1 , 1983, while
those objections were still pending before the Board , Canterbury Villa
purchased the assets and took over the operation from Mary Kenny. On
August 11 , 1983, the Board overruled the objections and certified the
union . On August 23, 1983 , the union requested recognition and bargain-
ing from Canterbury Villa Canterbury Villa refused . The Board found
that Canterbury Villa was the successor to Mary Kenny-noting inter
alia that the majority of Canterbury Villa's employees on March 1 had
been employed by Mary Kenny-and that Canterbury Villa's refusal to
bargain was unlawful , notwithstanding that on August 23 when the union
demanded bargaining , only 30 percent of the unit employees were former
employees of the predecessor . In this latter regard , the Board found that
the passage of time and unit changes occurring since successorship had
been established did not justify Canterbury Villa's refusal to bargain.
The Board 's holding in Canterbury Villa is predicated on the following
propositions : once a union establishes its majority status in a Board-con-
ducted election, unless and until the Board determines that the election
results are invalid because of objectionable conduct , the union 's status as
the chosen representative of the employees is not affected by a change in
identity of the employees ' employer, the union 's majority status remains
constant from the date it was established in the election throughout the
resolution of the question concerning representation in the union 's favor;
and the certification of the union that follows is binding whether the em-
ployer then is the predecessor or successor. Dynamic Machine Co, 221
NLRB 1140, 1142 ( 1975), enfd 552 F.2d 1195 (7th Cir 1977 ). In other
words, for the purpose of resolving the question concerning representa-
tion in the election proceeding , the Board in Canterbury Villa saw no
reason to differentiate between situations involving an unchanged em-
ployer and those involving an employer that is replaced by a successor
Furthermore , in Canterbury Villa the union 's continuing interest in being
recognized as the employees' bargaining representative was implicit in
the union 's continuing participation as a party in the election proceeding
Clearly, these are not the circumstances here
1041
employees did not care one way or the other about
the Union and that 75 percent did not want the
Union (i.e., Pinkley 's paraphase of comments made
to him) is insufficient to support the Respondent's
assertion of a good -faith doubt of the Machinists'
majority status . As noted below, an investigation of
the basis for Pinkley 's comment to Arbeitman dis-
closes that the employees ' statements to Pinkley
did not evidence a clear intention not to be repre-
sented by the Machinists . According to the cred-
ited testimony of one of those three employees,
Robert Bailey , Bailey never told Pinkley he did not
want the Union . The judge further pointed out
that , on cross-examination , Pinkley acknowledged
that Bailey never made such a categorical state-
ment (that he did not want the Union ), but simply
said he did not care whether or not they had a
union . In addition , the judge pointed out that the
other two employees , Follmer and Mazzuca, did
not testify at the hearing and were not available to
affirm or deny the union sentiments attributed to
them by Pinkley . Thus, while the judge credited
Pinkley 's testimony that he told Vice President Ar-
beitman that a majority did not want the Union, he
discredited the authenticity of Pinkley 's report to
Arbeitman regarding such employees' union senti-
ments. In such circumstances , we agree with the
judge's finding that the Respondent failed to show
that a majority of the employees in the Machinists
unit expressed a clear intention not to be represent-
ed by the Machinists.
ORDER
The National Labor Relations Board orders that
the Respondent, Royal Midtown Chrysler Plym-
outh, Inc., St . Louis, Missouri , its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain with Dis-
trict 9 , International Association of Machinists and
Aerospace Workers, AFL-CIO (Machinists Union)
as the exclusive collective-bargaining representative
of the employees in the following appropriate bar-
gaining unit with regard to their wages , hours,
working conditions, and other terms and conditions
of employment:
All journeymen automobile and truck mechan-
ics, machinists , electrical machinists, welders,
trimmers, metal men , fender, body painters, ra-
diator repairmen , refrigeration, automotive air
conditioning mechanics, inspectors , glass in-
stallers , service salesmen and towermen, ap-
prentices, and working foremen , and specialists
employed by the Respondent at its St. Louis,
Missouri facility EXCLUDING office clerical
1042 DECISIONS OF THE NATIONAL LABOR -RELATIONS BOARD
and professional employees , guards, and super-
visors as defined in the Act.
(b) Failing and refusing to furnish the Machinists
Union information that is relevant and necessary to
its role as the exclusive bargaining representative of
the unit employees.
(c) Requesting , urging, and assisting employees
to request a withdrawal card or to withdraw from
the Machinists Union, or from any other labor or-
ganization.
(d) Telling employees it will operate a nonunion
business.
(e) In any like or related manner interfering
with , restraining , or coercing its employees in the
exercise of rights guaranteed them by Section 7 of
the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Recognize and, upon request, bargain collec-
tively with District 9, International Association of
Machinists and Aerospace Workers, AFL-CIO as
the exclusive bargaining representative of the unit
employees with regard to wages, hours, working
conditions and other terms and conditions of em-
ployment of the unit employees , and if an under-
standing is reached , embody such understanding in
a signed agreement.
(b) On request , furnish the Machinists Union, the
information that is relevant and necessary to its
role as the exclusive bargaining representative of
the unit employees, including the information re-
quested in its January 9, 1985 letter.
(c) Post at its business facility located at 4315
South Kingshighway , St. Louis, Missouri , copies of
the attached notice marked "Appendix." " Copies
of the notice , on forms provided by the Regional
Director for Region 14, after being signed by the
Respondent 's authorized representative , shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted . Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered , defaced, or
covered by any other material.
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
" 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 Nation-
al 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 "
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 the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT fail or refuse to recognize and
bargain with District 9, International Association
of Machinists and Aerospace Workers, AFL-CIO
as the exclusive bargaining representative of the
employees in the following appropriate unit with
regard to the wages, hours, working conditions,
and other terms and conditions of employment.
All journeymen automobile and truck mechan-
ics, machinists, electrical machinists , welders,
trimmers, metal men , fender, body painters, ra-
diator repairmen , refrigeration , automotive air
conditioning mechanics , inspectors , glass in-
stallers, service salesmen and towermen, ap-
prentices , and working foremen, and specialists
employed at our St . Louis, Missouri facility
EXCLUDING office clerical and professional
employees , guards, and supervisors as defined
in the Act.
WE WILL NOT fail and refuse to furnish informa-
tion requested by District 9, International Associa-
tion of Machinists and Aerospace Workers, AFL-
CIO that is relevant and necessary to its role as the
exclusive bargaining representative of the unit em-
ployees.
WE WILL NOT request , urge, or assist our em-
ployees to request a withdrawal card or withdraw
from District 9, International Association of Ma-
chinists and Aerospace Workers, AFL-CIO or
from any other labor organization.
WE WILL NOT tell our employees that we will
operate a nonunion business.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, recognize and bargain col-
lectively with District 9, International Association
of Machinists and Aerospace Workers, AFL-CIO
as the exclusive bargaining representative of the
employees in the appropriate unit described above,
with regard to their wages , hours, working condi-
tions, and other terms and conditions of employ-
ment and, if an understanding is reached , embody
such understanding in a signed agreement.
ROYAL MIDTOWN CHRYSLER PLYMOUTH
WE WILL, on request, furnish information re-
quested by District 9, International Association of
Machinists and Aerospace Workers, that is relevant
and necessary to its role as the exclusive bargaining
representative of the unit employees, including the
information requested in its January 9, 1985 letter.
ROYAL MIDTOWN CHRYSLER PLY-
MOUTH, INC.
Michael T. Jamison, Esq., for the General Counsel.
Michael E. Kaemmerer, Esq. (Buechner, McCarthy, Leon-
ard, Kaemmerer, Guest & Owen), of St. Louis, Missou-
ri, for the Respondent.
Nancy M. Watkins, Esq. (Wiley, Craig, Armbruster & Wil-
burn), of St. Louis, Missouri, for Teamsters Local 618.
DECISION
STATEMENT OF THE CASE
ELBERT D . GADSDEN, Administrative Law Judge.
Charges of unfair labor practices were filed on 24 Janu-
ary 1985 and 8 February 1985, respectively , by District
9, International Association of Machinists and Aerospace
Workers, AFL-CIO (Machinists or Charging Party), and
Automotive , Petroleum and Allied Industries Union
Local No. 618 , affiliated with International Brotherhood
of Teamsters, Chauffeurs , Warehousemen and Helpers of
America (Teamsters or Charging Party ), against Royal
Midtown Chrysler Plymouth , Inc. (the Respondent). On
behalf of the General Counsel , the Regional Director for
Region 14, issued an order consolidating cases and a con-
solidated complaint , and an amended consolidated com-
plaint against the Respondent on 7 March 1985 and 18
April 1985, respectively.
In substance , the amended consolidated complaint al-
leged that Respondent is the successor of Quality Chrys-
ler Plymouth , and as such , it is the continued employing
entity of Quality; that by virtue of the unexpired collec-
tive-bargaining agreement in effect between Quality and
the Charging Parties, Respondent is bound to recognize
and bargain with the respective Charging Parties; that
Respondent is bound to recognize and bargain with
Charging Party Machinists , representing its mechanic
unit employees , and Charging Party Teamsters , repre-
senting its parts and delivery employees , respectively;
that Respondent has interfered with , restrained , and co-
erced its employees, by failing and refusing to furnish in-
formation requested by Charging Party Machinists on
behalf of Respondent 's mechanic employees ; that Re-
spondent has failed and refused to recognize and bargain
with Charging Party Teamsters , as the exclusive collec-
tive-bargaining representative of its parts and delivery
employees , and Charging Party Machinists , as the exclu-
sive collective-bargaining representative of its mechanic
employees ; that by so failing and refusing , Respondent
has violated Section 8(a)(1) and (5) of the Act; and that
by independent statements and other conduct by repre-
sentatives or agents of Respondent to unit employees,
Respondent has violated Section 8 (a)(1) of the Act.
1043
The Respondent filed an answer and an amended
answer on 29 March and 23 April 1985, respectively, de-
nying that it has engaged in any unfair labor practices as
alleged in the amended consolidated complaint.
A hearing in the above matter was held before me in
St. Louis, Missouri, on 20 and 21 May 1985. Briefs have
been received from counsel for the General Counsel and
counsel for the Respondent, respectively, which have
been carefully considered.
On the entire record, including my observation of the
demeanor of the witnesses, and my consideration of the
briefs filed by the General Counsel and Respondent, re-
spectively, I make the following
FINDINGS OF FACT
I. JURISDICTION
The uncontroverted and credited testimony of record
shows that from November 1983 through December 7,
1984, Quality Chrysler Plymouth Sales, Inc. located at
4315 South Kingshighway, St. Louis, Missouri, annually
had gross revenues in excess of $500,000; and that it pur-
chased and had shipped from out of State to its Kings-
highway facility Chrysler and Plymouth automobiles of a
value in excess of $50,000 annually. The parties stipulat-
ed that Quality Chrysler Plymouth Sales, Inc. was a Mis-
souri corporation.
I therefore conclude and find upon the foregoing cred-
ited evidence that Quality Chrysler Plymouth Sales, Inc.
was a Missouri corporate employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
The complaint alleges, the answer admits, and I find
that Royal Midtown Chrysler Plymouth, Inc. is an em-
ployer, engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The consolidated complaint alleges, the amended
answer admits, and I find that Charging Party Machinists
is, and has been at all times material herein, a labor orga-
nization within the meaning of Section 2(5) of the Act.
The consolidated complaint alleges, the amended
answer admits, and I find that Charging Party Teamsters
is, and has been at all times material herein , a labor orga-
nization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Information
Since 21 November 1982, Co-owners R. Sheahan and
Christopher Blumeyer operated a Chrysler Plymouth
dealership under the name of Quality Chrysler Plymouth
Sales, Inc. (Quality), which sold new and used Chrysler
and Plymouth automobiles . Shortly after commencing
business operations , Blumeyer and Teamsters Local 618
(Teamsters or Charging Party) entered into a collective-
bargaining agreement covering Quality's parts and deliv-
ery employees, effective 5 November 1982 to 31 July
1984. Also, on or about 1 December 1982, Blumeyer and
District 9 Machinists (Machinists or Charging Party) en-
1044 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tered into a collective -bargaining agreement covering
Quality's mechanic employees , effective 1 December
1982 to 31 July 1984. Both the Teamsters and the Ma-
chinists are Charging Parties in this proceeding.
Quality also became a member of Greater St. Louis
Automobile Association Signatory Group (GSAASG), a
multiemployer bargaining organization authorized to ne-
gotiate collective -bargaining agreements on behalf of its
members with labor organizations representing employ-
ees. Quality did not authorize GSAASG to negotiate and
bind it to an agreement with the Machinists on behalf of
its mechanic unit employees . However , Quality did
assign bargaining rights and was a signatory member of
GSAASG to negotiate with Teamsters on behalf of its
parts and delivery unit employees . The latter authoriza-
tion was never withdrawn.
The uncontroverted record evidence also established
that since on or about 1 December 1982 until 6 Decem-
ber 1984 , Charging Party Machinists was to be the desig-
nated exclusive collective-bargaining representative of
employees of Quality in the following appropriate unit:
All journeymen automobile and truck mechanics,
machinists, electrical machinists, welders, trimmers,
metal men , fender , body painters , radiator repair-
men, refrigeration , automotive air conditioning me-
chanics, inspectors , glass installers , service salesmen
and towermen , apprentices , and working foremen,
and specialists employed by Quality at its St . Louis,
Missouri facility EXCLUDING office clerical and
professional employees , guards, and supervisors as
defined in the Act.
Since on or about 5 November 1982 until 6 December
1984, Charging Party Teamsters was to be the designated
exclusive collective -bargaining representative of employ-
ees of Quality in the following appropriate unit:
All parts managers , counterpersons , parts depart-
ment employees , lubrication men, heavy truck driv-
ers, undercoat men, tire and battery department em-
ployees, auto top installers, pressure type washers,
polishers, new car clean-up employees, utility men,
seat cover employees , paint shop helpers, motor
riders, pickup and delivery and car jockeys, used
car clean-up employees , porters, sweepers , and utili-
ty shop employees employed by Quality at its St.
Louis, Missouri facility EXCLUDING office cleri-
cal and professional employees , guards, and supervi-
sors as defined in the Act.
In its answer , Respondent admitted that the following
named persons occupied the positions set opposite their
respective names, and are now , and have been at all
times material herein , supervisors of Respondent within
the meaning of Section 2(11) of the Act, and agents of
Respondent within the meaning of Section 2(13) of the
Act:
Edwin Sapot-President
Harold Arbeitman-Vice President
Joe Perniciaro-General Manager
The parties stipulated that William Pinkley, service
manager, is a supervisor for Respondent within the
meaning of Section 2(11) of the Act, and an agent within
the meaning of Section 2(13) of the Act.'
B. Respondent Purchased the Fixed Assets of Quality
Chrysler Plymouth
The uncontroverted and credited evidence established
that in or about November 1982, Sheahan also held a 20-
percent interest , and Blumeyer an 80-percent interest in
Quality Volkswagen Sales . In early 1984, Quality Volks-
wagen and Quality Chrysler Plymouth commenced expe-
riencing financial difficulty and Co -owner R. Michael
Sheahan purchased Blumeyer's interest in both Quality
Volkswagen and Quality Chrysler Plymouth dealerships.
Both dealerships were located at the same facility, 4513
South Kingshighway, St. Louis, Missouri . Sheahan
closed the Volkswagen dealership and continued to oper-
ate Quality Chrysler Plymouth . However Quality Chrys-
ler Plymouth became delinquent on its contributions to
the benefit funds of the bargaining units of both the Ma-
chinists and Teamsters . Sheahan nevertheless made an
effort to pay the contributions by making partial pay-
ments on its delinquency to the Teamsters (Rod Jog-
gerst) and the Machinists (Dave Meinell).
Near the end of 1984, Sheahan commenced searching
for interested purchases of the dealership of Quality
Chrysler Plymouth . As a result of his efforts , Harold Ar-
beitman and Edwin G. Sapot proceeded to negotiate for
the purchase of Quality in about November 1984. The
parties reached an agreement and signed a written con-
tract for a purchase price of $60 ,000 on 23 November
1984. However, although the written agreement was
never consummated by'the parties, Sapot and Arbeitman
paid off the capital loan of Sheahan to Commerce Bank,
which in turn released Sheahan of all indebtedness. Shea-
han thereupon assigned all assets to Arbeitman and
Sapot. Neither Teamsters Representative Joggerst nor
Machinists Representative Meinell learned about the
transfer of assets (ownership) until after it was complet-
ed. The transaction was completed on 7 December 1984.
Arbeitman and Sapot continued business operations in
the same facility under the name of Royal Midtown
Chrysler Plymouth, Inc.
Just prior to the 7 December 1984 change of owner-
ship from Quality Chrysler Plymouth to Royal Midtown
Chrysler Plymouth , the Respondent herein , employees in
the bargaining units at Quality were as follows:
Teamsters Machinists
Ronald Payne-Parts Robert Bailey-Mechanic
Manager
Gerald Agee-Parts Carlo Mazzuca-Mechanic
Andrea DiBello- Jere Tyrer-Mechanic
Parts
Henry Hearns-Porter Gary Follmer-Mechanic
William Pinkley-
Service Writer
' The facts set forth above are uncontroverted and are not in conflict
in the record.
ROYAL MIDTOWN CHRYSLER PLYMOUTH
Subsequent to the 7 December 1984 transfer of the
fixed assets from Quality to Respondent (Royal Midtown
Chrysler Plymouth), the co-owners were Sapot , presi-
dent, and Arbeitman , vice president . Arbeitman was also
the owner of another dealership under the name of the
Royal Gate Dodge, of which John Van Hoogstraat was
the general manager . Thus, a few days before the trans-
fer from Quality to Respondent , Manager Van Hoog-
straat interviewed the employees of Quality for employ-
ment with the new company, Respondent (Royal Mid-
town Chrysler Plymouth ). Following the interviewing
process by Van Hoogstraat , Respondent immediately or
later in December hired former employees of Quality in
the bargaining units as follows:
Teamsters Unit
Ronald Payne-Parts Manager
Term- 12-26-84
Donald Miller-Parts Man
Hired-2-26-84
Andrea DiBello-Parts
12-26-84
Gerald Agee-Parts
Term-3-8-85
Separated-5-31-85
Albert Micks-Parts
Hired-1-7-85
Jerry Messicks-Parts
Hired-3-18-85
Machinists Unit
William Pinkley-Service Writer/Manager
Robert Bailey-Mechanic
Gary Follmer-Mechanic
Jere Tyrer-Mechanic
Hired 2-18-85
separated 5-31-85
Carlo Mazzuca-Mechanic
Ron Rodash
Term 2-15-85
Dave R . Meinell , business representative for the Ma-
chinists , went to Quality and spoke with Sheahan after
he learned that Quality had been sold. On 9 January
1985, Meinell , and Rod Joggerst, business representative
for the Teamsters, went to the Respondent 's showroom
and asked the receptionist to speak with Arbeitman. She
told them he was in a meeting and referred them to the
manager across the street . Meinell and Joggerst went
across the street and they testified they introduced them-
selves to Manager Perniciaro , told them who they repre-
sented , and Meinell asked him if he had the authority to
negotiate or sign subsequent agreements covering wages,
hours, and working conditions . Perniciaro told them he
did not , but made a telephone call across the street to
Respondent , and then referred them to Arbeitman.
Meinell and Joggerst returned across the street to Re-
spondent 's showroom where they met Arbeitman on the
floor, and where they testified they introduced them-
selves and told him who they represented . However, Ar-
beitman denied that either Meinell or Joggerst intro-
duced themselves or told him who they represented.
Meinell and Joggerst further testified that Meinell ex-
1045
plained to Arbeitman that the Respondent hired a major-
ity of the members in the bargaining unit , and that ac-
cording to the law , the Respondent had an obligation to
negotiate the terms and conditions of a contract for the
respective units . Teamsters Representative Joggerst testi-
fied that after he introduced himself and told General
Manager Perniciaro and Vice President Arbeitman who
he represented , he said Machinists Representative Mein-
ell did the rest of the talking, and he corroborated Mein-
ell's testimony of the conversations held with the general
manager and the vice president , respectively.
However , Vice President Arbeitman 's version of the
conversation differs from that of Meinell and Joggerst in
that Arbeitman denied that either Meinell or Joggerst in-
troduced themselves or told him who they represented;
that both Meinell and Joggerst approached him in a
threatening manner talking about negotiating a contract;
that he asked them for a copy of the contract and they
refused to produce a contract ; and that he did not have
any idea about a contract to which they were referring.
He acknowledged he did ask them to leave the premises
and that they did in fact leave the premises. He also tes-
tified that he never negotiated or signed a collective-bar-
gaining agreement with either the Machinists or the
Teamsters. 2
Machinists Business Representative Dave Meinell sent
a letter dated 9 January 1985 to the Respondent request-
ing it to negotiate a contract on behalf of its Machinists
unit employees. The letter also requested bargaining unit
information regarding the names , addresses , dates of em-
ployment and separation from employment , and rates of
pay and classifications of employees in the unit . The in-
formation was requested within 10 days from the receipt
of the letter which was sent certified mail (G .C. Exh. 5).
Respondent did not dispute its receipt of the Machin-
ists 9 January letter and it acknowledged it did not re-
2 Having closely observed the demeanor of witnesses Meinell , Joggerst
and Arbeitman, and having carefully examined their respective testimoni-
al versions in light of all of the credited evidence of record , I am strong-
ly persuaded that Arbeitman was not testifying truthfully when he denied
that Meinell and Joggerst identified themselves and told him who they
represented on 9 January. In order to credit Arbeitman 's version, I would
have to believe and conclude that Arbeitman, the owner of another deal-
ership whose mechanic employees are unionized and hold a contract with
him, nevertheless does not understand what kind of contract to which
Meinell and Joggerst were referring ; that two experienced union business
representatives such as Meinell and Joggerst did not realize they had to
identify themselves and state who they represented in order to gain the
receptable attention of an employer, and that they even refused to state
their names or to tell who they represented when they were asked to do
so by Arbeitman . Such a version or conclusion does not coincide with
reality. In fact , common experience discredits it Moreover, the rather re-
luctant manner in which Arbeitman testified , which is partially reflected
on p 198 through 203 of the transcript herein , was far short of convinc-
ing that he was telling the truth . On the contrary , I was persuaded that
Meinell and Joggerst both identified themselves , told Arbeitman the
name of the respective union they represented , and that they neither
threatened Arbeitman with physical harm nor gave him any reasonable
basis for being apprehensive about his safety, even though their demand
for recognition and bargaining might have eventually evolved into a
heated exchange . However, that occurred only after Arbeitman manifest-
ed an unwillingness to talk with them about recognition or negotiation
with respect to the Machinists or Teamsters unit employees I therefore
credit the testimony of Meinell and Joggerst and discredit Arbeitman's
testimony in this respect.
1046 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spond to the letter or provided the information request-
ed.
A letter dated 6 March 1985 (G.C. Exh. 6) was sent to
the Machinists on the same date. In substance the letter
provided as follows:
Dear Sirs,
While working at Royal Midtown CP December
13, 1984, to present, I have found that my benefits,
working conditions, and safety conditions never im-
proved considerably, much better than when I had
union representation , while with Quality C.P. My
representative did not help at this time and I feel I
no longer wish to be represented by I.A.M. Local
I therefore respectively request a withdrawal
card immediately from I.A.M. Local ???
The letter also stated , "please advise," and was signed
William E. Pinkley, Robert E. Bailey, Gary Follmer, and
Jere Tyrer, with the postscript: "T.G. Hawkins-em-
ployed 2-4-85 to present. I feel no need for union repre-
sentation . The working conditions are to my satisfac-
tion."
In reference to the above letter, Jere Tyrer worked for
Quality from November 1982 to December 1984 as a me-
chanic with mechanics Gary Follmer, Bob Bailey, Carlo
Mazzuca, and Service Writer Bill Pinkley, who was a
member of the bargaining unit . When he learned of the
contemplated change in ownership of Quality in Decem-
ber 1984 he applied for an interview for employment
with Respondent. The interview was conducted by John
Van Hoogstraat, on behalf of the Respondent. During
that interview, Tyrer testified that Manager John Van
Hoogstraat told him the new ownership would be non-
union and he then terminated his employment with Re-
spondent in December 1984.
Tyrer further testified that he was hired by Service
Manager Pinkley for Respondent on 15 February 1985
until April 24, 1985. In March, Tyrer said Pinkley told
him he had retained an attorney to obtain moneys due
from Quality for the former unit employees at Quality.
Pinkley also told him he wanted the mechanics to get a
written withdrawal card from the Union because this
was a problem for him (Pinkley), mentioning the Labor
Board was on him, and asked him to call the Union and
get them. On the next day, Pinkley came in with a docu-
ment dated 6 March 1985, which he (Tyrer) signed be-
cause all the other employees had signed it and he did
not want to be the source of trouble. He stated that
Pinkley had told him previously that he was going to
prepare something to get something going.
Thomas Hawkins testified that he was hired by Pink-
ley for the Respondent on 7 February 1985; and at that
time Pinkley told him the Respondent was a nonunion
shop. Hawkins worked with Bob Bailey, Gary Follmer,
and Ron Rodash. He further testified that on 6 March
1985 Pinkley brought the letter (G.C. Exh. 6) to him. He
read it, signed it, and Pinkley asked him if there was
anything he wanted to add since he was new in the shop.
Hawkins said he then added the words following his sig-
nature on the letter because he wanted to go with the
flow since he was new in the shop.
Analysis and Conclusions
The crucial issue presented for determination in this
case is whether Respondent (Royal Midtown Chrysler
Plymouth) is a successor to Quality Chrysler Plymouth,
and is thereby legally obligated to bargain with the Ma-
chinists and/or the Teamsters, with respect to Respond-
ent's mechanic unit and parts and delivery unit employ-
ees, respectively.
In addressing this question, it is observed that the
Board has long held that whether a purchaser, like Re-
spondent, is obligated to bargain with the exclusive rep-
resentative of the employees of its predecessor, is deter-
mined by establishing whether there is substantial conti-
nuity in the employing enterprise. Where there is such
continuity, the Board says, there is a presumption of ma-
jority status by the union under the predecessor, such as
established by the collective-bargaining agreements we
have here, the bargaining obligation is not affected by
the change in ownership. The Board went on to describe
the traditional criteria for determining whether there is
substantial continuity in the employing enterprise as fol-
lows: (1) business operations; (2) plant; (3) work force;
(4) jobs and working conditions; (5) supervisors; (6) ma-
chinery, equipment, and methods of production; and (7)
product or service. Grico Corp., 265 NLRB 1344, 1345
(1982).
Successorship
Applying these well-established criteria to the uncon-
troverted evidence in the instant case, it is noted that:
(1) The business operations of Respondent involved a
continuation of the same sales and services of new and
used Chrysler Plymouth automobiles, as were conducted
by Respondent's predecessor, Quality Chrysler Plym-
outh;
(2) Respondent carries on its business operations in the
same facility where Quality Chrysler Plymouth operated
the same business located at 4315 Kingshighway, St.
Louis, Missouri;
(3) the work force at Quality consisted of four persons
in the Teamsters unit of the parts department, and four
mechanics and one service writer in the Machinists unit
of the service department. Respondent immediately hired
three of the same Teamsters unit parts employees and
four of the same Machinists service department employ-
ees. Several weeks later, Respondent employed the fifth
Machinists unit employee formerly employed by Quality;
(4) after Respondent purchased all of the fixed assets
of Quality on 7 December 1984, all of Quality's Team-
sters unit parts employees employed by Respondent, per-
formed the same work they formerly performed for
Quality. Likewise, four of the Machinists unit mechanic
employees performed the same job function for Respond-
ent that they formerly performed for Quality, and the
fifth Machinists unit employee, William Pinkley, who
formerly performed the job of service writer for Quality,
thereafter performed the job of service writer and serv-
ice manager for Respondent . Consequently , it is well es-
ROYAL MIDTOWN CHRYSLER PLYMOUTH 1047
tablished by the evidence that Respondent employed a
majority of its predecessor 's Teamsters unit employees
and a majority of its Machinists unit employees subse-
quent to its purchase of the assets on 7 December 1984;
(5) Teamsters unit employee Ronald Payne served as
parts manager while he was employed by Quality, and
he served as parts manager when he was employed by
Respondent . Payne was therefore a supervisor for both
Quality and the Respondent. Although Machinists unit
employee William Pinkley served as service writer,
under a service manager, when he was employed by
Quality, he served as service manager and service writer
while working for Respondent , and therefore is a super-
visor for the Respondent;
(6) the uncontroverted evidence established that Re-
spondent purchased the fixed assets of Quality and con-
tinued to operate the same sales , parts and service de-
partments , utilizing the same fixed assets (machinery and
equipment) in continuing the same business operations
that were formally conducted by Quality;
(7) Quality and Respondent dealt in the same product
and service , the sale and service of new and used Chrys-
ler and Plymouth automobiles.
I therefore conclude and find upon the foregoing cred-
ited evidence , that Respondent assumed the same auto-
mobile sales and servicing business , at the same location,
with essentially the same work force, the same job classi-
fications and working conditions , essentially the same su-
pervisors , using essentially the same machinery and
equipment , and dealing in the same product and service,
with many of the same customers as when the enterprise
was operated by Quality. I therefore further conclude
and find that Respondent is the successor of Quality.
Grico Corp., supra; Premium Foods, 260 NLRB 708, 714
(1982); Merchants Home Delivery Service, 230 NLRB 290,
295 (1977).
Having found that there is a substantial continuity of
the Quality enterprise carried on by the Respondent, it is
presumed that both the Machinists unit and the Team-
sters unit employees enjoyed a majority status under
Quality, as established by the respective collective-bar-
gaining agreements , at the time Respondent purchased
the fixed assets of Quality on 7 December 1984, and sev-
eral weeks thereafter. Merchants Home Delivery Service,
supra.
Demand for Recognition and Bargaining
Based upon the foregoing credited evidence, I find
that Machinists Business Representative Meinell and
Teamsters Business Representative Joggerst visited Re-
spondent on 9 January 1985, introduced themselves to
Respondent 's vice president, Arbeitman , and told him
they represented their respective Unions (Machinists and
Teamsters). Although Meinell did the remainder of the
talking, by asking Arbeitman to recognize them and ne-
gotiate a contract on behalf of Respondent's unit em-
ployees, it may be reasonably inferred from the fact that
both Meinell and Joggerst were there together for the
same purpose, that Meinell 's request for recognition and
negotiation was made on behalf of both the Machinists
and the Teamsters (Joggerst), in lieu of both of them at-
tempting to articulate the same request at one time. Ar-
beitman immediately ventilated his frustration by pre-
tending he did not understand their request or by not
making a reasonable inquiry to - ascertain what they were
requesting , and finally by asking them to leave the prem-
ises without an honest attempt to learn further details of
their visit and request . Under these circumstances, it was
not necessary for Teamsters Representative Joggerst to
make an additional verbal request to Arbeitman to nego-
tiate on behalf of the Teamsters unit employees. The re-
quest by Meinell , who was accompanied by Joggerst,
who had previously introduced himself and stated whom
he represented , was obviously a sufficient communica-
tion to Arbeitman that both representatives were request-
ing recognition and negotiations for a contract.
The evidence is also uncontroverted that when Re-
spondent acquired the fixed assets of its predecessor
(Quality) on 7 December 1984, Respondent interviewed
and thereafter employed three of the four Teamsters unit
employees (Payne, DiBello, and Agee ) who remained in
its employ for several weeks after 7 December 1984. Re-
spondent argues, however, that on 9 January , if Meinell
and Joggerst requested negotiations with respect to unit
predecessor employees, the only one of the three prede-
cessor parts employees in Respondent 's employ at that
time was Gerald Agee . Consequently , Respondent now
argues that since it did not have a majority of Teamsters-
predecessor employees in its employ on 9 January, Re-
spondent was not obligated to recognize and bargain
with the Teamsters because the predecessor parts unit
employees no longer represented a majority of such em-
ployees . In support of its position , the Respondent cites
NLRB v. Burns Security Services, 406 U.S. 272 (1972).
On the contrary , the General Counsel argues that Re-
spondent is nevertheless obligated to bargain with the
Teamsters with respect to all parts and delivery employ-
ees, because the relevant date for determining whether
an alleged successor employer has hired a majority of a
predecessor 's employees , is the date on which a repre-
sentative complement of predecessor employees is em-
ployed by the successor. The General Counsel cites Can-
terbury Villa, Inc., 271 NLRB 144 fn. 5 (1984), where the
Board , pointing out that the Supreme Court affirmed its
test in NLRB v. Burns Security Services, supra , stated that,
[A] mere change of employers or of ownership in
the employing industry is not such an `usual circum-
stance' as to affect the force of the Board's certifica-
tion within the normal operative period if a majori-
ty of employees after the change of ownership or
management were employed by the preceding em-
ployer [cited cases omitted].
Thus, having found that there was substantial continui-
ty in the company in Canterbury Villa, supra, the Board
concluded that Canterbury was a successor to its prede-
cessor and therefore, had a duty to recognize and bar-
gain with the certified collective-bargaining representa-
tive of its employees . With respect to a subsequent dimi-
nution in the majority employee complement of the suc-
cessor, the Board stated in Canterbury , supra at 145 fn. 5
that, "It is well settled that the time frame for determin-
ing what percentage of a purchaser's employees are
1048 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
former employees of a predecessor is when a representa-
tive complement of an employer's work force is first on
the job. Hudson River Aggregates, 246 NLRB 192 (1979)."
Here, there is no dispute that a majority of Teamsters
unit employees were in Respondent 's employ on , and for
several weeks after, 7 December 1984, when Respondent
commenced business operations as successor to Quality.
In view of this explicit evidence and Board law, I con-
clude and find that Respondent was obligated to bargain
with Charging Party Teamsters , on and subsequent to
the change of ownership on 7 December , even though
the Teamsters did not request recognition and negotia-
tion until 9 January 1985. Hudson River Aggregates , supra.
Additionally , the Board has also held that even in the
event of a loss of majority of a complement of unit em-
ployees after the change of ownership , the remaining
unit employees are presumed to support the Union in the
same proportion as the original complement employed
by the successor, unless such presumption is rebutted by
objective considerations . John Ascuago's Nugget, 230
NLRB 275, 286-287 (1977); and Golden State Rehabilita-
tion Convalescent Center, 224 NLRB 1618, 1620 (1976),
enf. denied on other grounds 566 F.2d 77 (9th Cir. 1977).
In the instant case, Respondent did not present any
evidence to rebut the presumption of continued support
for the Teamsters, prior to the request for recognition
and negotiations by the Teamsters and the Machinists on
9 January 1985. Consequently , based upon the foregoing
credited evidence and cited cases, I find that both the
Machinists and Teamsters represented a majority of the
respective unit employees in mid-December 1984, and on
9 January 1985, when the Machinists and Teamsters re-
quested recognition and bargaining of the Respondent.
Canterbury Villa, supra; NLRB v. Burns Security, supra;
and Hudson River Aggregates , supra . Since the Machin-
ists' 9 December 1985 request, Respondent has failed and
refused to recognize or bargain with either the Machin-
ists or the Teamsters , in violation of Section 8(a)(1) and
(5) of the Act. NLRB v. Burns Security, supra.
It is undisputed that a majority of predecessor Machin-
ists unit employees were in Respondent 's employ when
the Machinists made its request for recognition and bar-
gaining on 9 January.
Machinists ' Request for Information
It is well established by the evidence and Respondent's
admission , that it received the Machinists' 9 January
1985 letter, requesting negotiations and information con-
cerning the names, dates of employment and separation,
and rates of pay and classifications of Machinists unit
employees ; and that Respondent has failed to respond to
the written request, as well as failed and refused to pro-
vide the requested information.
It has been long settled that an employer has a duty
under the Act to supply, upon request, such information
which is probably relevant , in fact relevant, necessary
and useful to a union 's effective and intelligent evalua-
tion in determining whether to process employee griev-
ances, or to negotiate on behalf of employees . NLRB v.
Acme Industrial Co., 385 U.S. 432, 438 (1967). In the in-
stant case, since the subject of the information requested
appears relevant to the Unions' interest in having such
data on its unit employees for purposes of determining
the identity of its members, or prospective members, or
collecting their dues, the request appears to be at least
probably relevant and not unreasonable.
The above conclusion is further supported by Board
law, that information such as that requested by the Ma-
chinists here, is presumptively relevant. Monsanto Co.,
268 NLRB 1381 ( 1984). Respondent did not present any
evidence in rebuttal to the presumption of relevancy, and
I find that the presumption is not rebutted. Accordingly,
Respondent 's failure and refusal to provide the informa-
tion requested by the Machinists constitutes a failure and
refusal to bargain in good faith with the exclusive collec-
tive-bargaining representative of its Machinists unit em-
ployees, in violation of Section 8(a)(1) and (5) of the Act.
NLRB v. Acme Industrial Co., supra; Monsanto Co.,
supra.
Coercive Action by Respondent's Agent
The credited evidence of record also established that
on or about 7 December 1984, John Van Hoogstraat
(John Van), manager of Respondent 's Dodge dealership,
pursuant to Respondent 's authority, interviewed employ-
ees of Quality for employment with Respondent , includ-
ing mechanic employee Jere Tyrer. During the inter-
view, Tyrer testified that Van Hoogstraat told him the
new ownership would be nonunion . Mechanic Thomas
Hawkins testified that he was interviewed for employ-
ment and subsequently hired by Service Manager Wil-
liam Pinkley in late January or early February 1985.
Hawkins further testified that during his interview Pink-
ley told him Respondent was nonunion . Van Hoogstraat
testified that during his interview with the employees on
7 December 1984, he' was aware that Quality employees
had a contract with and were represented by a union, be-
cause several of the employees asked him if the new
company had a union . Van Hoogstraat did not state
whether or not he answered the employees ' question, but
notably he did not deny the prior testimony of Tyrer or
Hawkins that he told them Respondent was nonunion. I
therefore credit Tyrer's and Hawkins' testimony and find
that Van Hoogstraat told Tyrer and Houston that Re-
spondent would be or was already nonunion.
Since Van Hoogstraat was admittedly a manager of
one of Respondent 's other automobile dealerships, and
pursuant to directions of Respondent interviewed em-
ployees of predecessor Quality for employment on behalf
of Respondent, Van Hoogstraat had actual and apparent
authority to act as agent, and was in fact an agent of Re-
spondent, to interview and hire the employees . Gourmet
Foods, 270 NLRB 578 (1984); and Bio-Medical of Puerto
Rico, 269 NLRB 827 (1984). Thus, in his capacity as
interviewing and hiring agent for Respondent, Van
Hoogstraat's statement to employees Tyrer and Hawkins,
that Respondent 's operation was or would be a nonunion
shop , is probative evidence that Respondent did not
intend to recognize or bargain with the Machinists or
Teamsters Union as representatives of the newly hired
unit employees. This conclusion is further supported by
the fact that Respondent , upon request, refused to recog-
nize or bargain with the Machinists or the Teamsters as
ROYAL MIDTOWN CHRYSLER PLYMOUTH
representatives of its respective mechanic unit and parts
unit employees.
I therefore find that Van Hoogstraat 's announcement
to the employees that Respondent would not be a union
shop tended to interfere with , restrain, and coerce Re-
spondent 's employees in the exercise of their right to
have or organize a union to represent them . Such an an-
nouncement constituted a violation of Section 8(a)(1) of
the Act . Lawson Co., 267 NLRB 463 (1983).
Efforts to Have Employees Withdraw from
the Union
Jere Tyrer further testified he was hired by Respond-
ent's service manager , William Pinkley, on 15 February
1985. In early March, Pinkley told him he "wanted the
mechanics to secure a withdrawal card from the Union
because this was a problem for him, mentioning the
Labor Board was on him ...." Pinkley added he was
going to prepare something to get something started. On
the next morning, Pinkley brought a letter dated 6
March 1985 , signed by himself, William Pinkley (G.C.
Exh. 6), which expressed satisfaction with benefits, safety
and working conditions at the Respondent , which were
better than conditions under union representation at
predecessor Quality; and that since union representation
did not prove helpful at that time he no longer wished to
be represented by the Machinists, and therefore request-
ed immediate withdrawal from the Machinists.
Since the letter was already signed by machinists
Robert Bailey , Gary Follmer, and T. G. Hawkins, Jere
Tyrer testified that he signed the letter because he did
not want to be a source of trouble. Hawkins testified that
Pinkley presented him with the letter on March 6 and
asked him if he wanted to add anything since he was
new in the shop. Hawkins said to go along with the
flow, he signed and added a postscript of his satisfaction
in working for the Respondent . The letter was sent to
the Machinists.
According to Pinkley's testimony, Bailey, Follmer,
and himself had expressed concern as early as December
1984 about the Union not assisting them in getting their
last pay from Quality. Between 23 December 1984 and
January 1985, Pinkley said discussions between himself,
Bailey, Follmer and the new employee Rodash estab-
lished they were also satisfied that they could get parts,
wherein they could not get parts and equipment at Qual-
ity; that they had Blue Cross-Blue Shield , a $15,000 life
insurance policy, were offered profit sharing, and these
were benefits they did not have at Quality. He said this
view represented a consensus of the mechanics , with the
exception of Jere Tyrer, who was not present. In early
March they tried to get a withdrawal card from the
Union but the Union refused to grant it . Pinkley said fi-
nally Bailey suggested he (Pinkley) prepare a letter re-
questing a withdrawal card on behalf of them (Bailey
and Follmer).
Pinkley further testified that around the first of the
year (1985) Arbeitman asked him how the employees felt
about the Union. He said he told Arbeitman, "Well, basi-
cally nobody really cares ," meaning Bailey and Follmer.
On cross-examination Pinkley said he knew he was ex-
cluded from the bargaining unit since he was Respond-
1049
ent's service manager . Although he said Bailey told him
in December he did not care whether or not they had a
union , he acknowledged on cross-examination that Bailey
never told him he (Bailey) did not want the Union.
After evaluating the testimonial versions of employees
Jere Tyrer and T . G. Hawkins , as opposed to the ver-
sions of Service Manager William Pinkley and employee
Robert Bailey, I credit Tyrer and Hawkins ' version over
those of Pinkley and Bailey for the following reasons: It
is quite clear from the testimony that neither Tyrer,
Hawkins nor Bailey asked Pinkley to prepare the 6
March letter (G.C. Exh. 6) requesting a withdrawal card
or withdrawal from the Union. At most, Bailey said he
and Pinkley agreed to put a request for withdrawal in
writing but the evidence does not indicate they agreed
when that should be done . Bailey said Gary Follmer was
not present when he agreed with Pinkley that such a re-
quest should be put in writing , and Follmer did not testi-
fy in this proceeding . Hawkins and Tyrer did not author-
ize the preparation of the letter . They saw the letter for
the first time on the morning of 6 March after it had
been signed by Pinkley , Bailey , and Follmer . Therefore,
Pinkley's testimony that the mechanic employees agreed
to withdraw from the Union and requested him to pre-
pare such a letter is not corroborated by testimony of
any employees , including Bailey.
On the contrary , Tyrer and Hawkins affirmatively tes-
tified that they had not participated in any discussion or
agreement to withdraw from the Union . Instead , the evi-
dence shows that Pinkley presented the letter to Haw-
kins and asked him if he wanted to add anything. Tyrer
signed because the letter was already signed by Manager
Pinkley and two of his coworkers , Bailey and Follmer,
both of whom were his coworkers at predecessor Qual-
ity. Under these circumstances, I find that Manager
Pinkley initiated the idea of obtaining a withdrawal card
or withdrawing from the Union , the idea of making such
a request in writing, he prepared the letter requesting
withdrawal , and he solicited the concurrence and/or the
signatures of the signatory employees.
Since Pinkley was service manager and an acknowl-
edged supervisor for Respondent , his initiative and mana-
gerial influence is obviously manifested by the manner in
which the signatures of the employees , and especially
those of Tyrer and Hawkins were secured. Tyrer and
Hawkins testified they signed because they would have
been uncomfortable and apprehensive if they dissented or
refused to sign. Moreover , it may be reasonably inferred
from the conditions under which Tyrer and Hawkins
signed the letter, that Follmer, who did not testify, also
signed because he was influenced to do so by the mana-
gerial influence and leadership efforts of Manager Pink-
ley. It is therefore clear, and I find that the signing of
the letter by all of the employees here can hardly be
characterized as having been obtained voluntarily, inde-
pendent of managerial influence. In fact, Manager Pink-
ley's supervisory influence (suggesting withdrawal, pre-
paring the letter requesting withdrawal , and soliciting
signatories to it) is self-evident of Respondent 's interfer-
ence, coercion , and restraint upon the free exercise of the
employees ' Section 7 rights, in violation of Section
1050 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8(a)(1) of the Act. Frontier Dodge, 277 NLRB 1242, 1243
(1985).
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I will recommend that it be or-
dered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act.
Having found that Respondent violated Section 8(a)(1)
and (5) of the Act by unlawfully failing and refusing to
recognize and bargain with Charging Parties Machinists
Union and Teamsters Union as the exclusive collective-
bargaining representatives of its employees in the appro-
priate Machinists unit and Teamsters unit, respectively;
that Respondent violated Section 8(a)(1) and (5) of the
Act, by failing and refusing to furnish relevant informa-
tion requested by the Machinists Union ; and that Re-
spondent violated Section 8(a)(1) of the Act, by request-
ing, urging , and assisting Machinists unit employees to
request a withdrawal card or withdrawal from Charging
Party Machinists Union , I will recommend that Re-
spondent cease and desist from engaging in such con-
duct; that it be ordered to recognize and, upon request,
bargain in good faith with Charging Party Machinists
and Charging Party Teamsters Unions as the exclusive
collective-bargaining representatives of its employees in
the respective appropriate units ; and that it furnish the
information requested by the Machinists Union.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Charging Party Machinists Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. Charging Party Teamsters Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
4. By unlawfully failing and refusing to recognize and
bargain with Charging Party Machinists Union, Re-
spondent violated Section 8(a)(1) and (5) of the Act.
5. By unlawfully failing and refusing to recognize and
bargain with Charging Party Teamsters Union , Respond-
ent violated Section 8(a)(1) and (5) of the Act.
6. By unlawfully failing and refusing to furnish infor-
mation requested by Charging Party Machinists Union,
Respondent violated Section 8(a)(1) and (5) of the Act.
7. By unlawfully requesting, urging and assisting Ma-
chinists unit employees to request a withdrawal card or
withdrawal from Charging Party Machinists Union, Re-
spondent violated Section 8(a)(1) of the Act.
8. All of the below-described employees employed by
Respondent in its service department , constitute an ap-
propriate unit for purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All journeymen automobile and truck mechanics,
machinists , electrical machinists , welders, trimmers,
metal men , fender, body painters , radiator repair-
men, refrigeration , automotive air conditioning me-
chanics, inspectors , glass installers, service salesmen
and towermen , apprentices, and working foremen,
and specialists employed by Quality at its St. Louis,
Missouri facility EXCLUDING office clerical and
professional employees, guards, and supervisors as
defined in the Act.
9. All of the below -described employees employed by
Respondent in its parts and delivery department , consti-
tute an appropriate unit for purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act:
All parts managers , counterpersons , 'parts depart-
ment employees , lubrication men, heavy truck driv-
ers, undercoat men, tire and battery department em-
ployees, auto top installers , pressure type washers,
polishers , new car clean -up employees , utility men,
seat cover employees , paint shop helpers, motor
riders, pickup and delivery and car jockeys, used
car clean-up employees , porters, sweepers, and utili-
ty shop employees employed by Quality at its St.
Louis, Missouri facility EXCLUDING office cleri-
cal and professional employees , guards, and supervi-
sors as defined in the Act.
10. At all times material herein , the Charging Party
Unions have been the exclusive collective -bargaining
representative of the employees in the aforedescribed ap-
propriate units within the meaning of Section 9(a) of the
Act.
[Recommended Order omitted from publication.]
Michael T. Jamison, Esq., for the General Counsel.
Michael E. Kaemmerer, Esq. (Buechner, McCarthy, Leon-
ard, Kaemmerer, Guest & Owen), of St . Louis, Missou-
ri, for the Respondent.
Nancy M. Watkins, Esq. (Wiley, Craig, Armbruster & Wil-
burn), of St . Louis, Missouri , for Teamsters Local 618.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN , Administrative Law Judge. On
2 April 1986 , the Board remanded the 12 August 1985
above-captioned decision of the administrative Law
judge, for further consideration of certain below-de-
scribed 8(a)(1) and (5) allegations in the amended com-
plaint ; and that the judge, based upon evidence in the
record , issue a Supplemental Decision and Order within
30 days of his receipt of its remand Order . The Board
deferred considering the remaining allegations of the
complaint , pending the judge's issuance of a Supplemen-
tal Decision and recommended Order.
1. Specifically , the Board correctly noted that the
complaint alleged and mechanic employee Jere Tyrer
testified that during an employment interview in early
December 1984, Respondent 's general manager, John
Van Hoogstraat , told him successor Respondent (Royal
Midtown) would operate nonunion ; that the judge found
Van Hoogstraat 's statement violated Section 8(a)(1) of
the Act because Van Hoogstraat did not deny he made
the statement, although the record shows Van Hoog-
straat testified he did not tell any of the persons he inter-
viewed on 7 December, that Respondent would not be a
union shop ; and that since the judge failed to credit or
ROYAL MIDTOWN CHRYSLER PLYMOUTH
reject Van Hoogstraat's testimony , the case is remanded
to him to resolve the conflicting testimonial accounts,
and determine under the credited testimony, whether Re-
spondent violated Section 8(a)(1) of the Act.
2. The Board further correctly noted that the amended
complaint alleged that Respondent failed and refused to
recognize and bargain with the Machinists Union, in vio-
lation of Section 8(a)(5) of the Act; that the judge found
that the Respondent , a successor employer, had a duty to
bargain with the Machinists Union because a majority of
its predecessor Machinists unit employees were em-
ployed by Respondent when the Machinists Union re-
quested recognition and bargaining on 9 January 1985;
and that although Respondent had acknowledged that it
employed a majority of predecessor Machinists unit em-
ployees on 9 January, it affirmatively alleged in its
answer that it was not obligated to recognize and bar-
gain with the Machinists Union . Respondent articulated
this defense in its opening statement at the hearing,
adding at that time , and in its posthearing brief, that Re-
spondent had a good-faith doubt that a majority of Ma-
chinists unit employees supported the Machinists Union,
but the judge failed to address this defense in his deci-
sion.
In complying with the Board 's Order to address these
issues, I have reviewed my decision , the record in this
proceeding , the posthearing briefs submitted by the re-
spective parties, and now include the following written
credibility resolutions and findings , inadvertently omitted
in my original decision, in this supplemental decision.
A. Respondent 's Successorship Obligation to Bargain
The uncontroverted record evidence shows that imme-
diately prior to the 7 December 1984 change of owner-
ship from Quality Chrysler Plymouth to Respondent
(Royal Midtown Chrysler Plymouth), employees in the
respective bargaining units and classifications at Quality
were as follows:
Teamsters
Ronald Payne-Parts Manager
Gerald Agee-Parts
Andrea DiBello-Parts
Henry Hearns-Porter
Machinists
Robert Bailey-Mechanic
Carlo Mazzuca-Mechanic
Jere Tyrer-Mechanic
Gary Follmer-Mechanic
William Pinkley-Service Writer
Following the 7 December 1984 interviewing process
by Van Hoogstraat, Respondent immediately or later in
December hired former employees of Quality in the bar-
gaining units on the dates indicated under their respec-
tive names as follows:
Teamsters Unit
Gerald Agee
Hired 12-14-84
Terminated 3-8-85
Andrea DiBello
Hired 12-7-84
Terminated 12-26-84
Ronald Payne
Hired 12-7-84
Terminated 12-26-84
Machinists Unit
Robert Bailey
Hired 12-13-84
Gary Follmer
Hired 12-13-84
Carlo Mazzuca
Hired 12-13-84
Terminated 2-7-85
William Pinkley
Hired 12-10-84
1051
Respondent immediately commenced business oper-
ations as Royal Midtown Chrysler Plymouth with four
(Bailey, Follmer , Muzzuca , and Pinkley) of the five
predecessor Machinists unit employees in its employ. It
had one Teamsters unit employee (DiBello) in its
employ, and 1 week later, 14 December 1984, it had
three of the four predecessor Teamsters unit employees
(Payne, DiBello, and Agee ) in its employ . Consequently,
by 15 December 1984, Respondent had a majority of
both predecessor Teamsters unit and Machinists unit em-
ployees in its employ.
B. The Majority Status of the Teamsters Unit
The General Counsel argues that Respondent is obli-
gated to bargain with the Teamsters Union on behalf of
the parts unit, because the relevant date for determining
whether an alleged successor employer has hired a ma-
jority of a predecessor's employees , is the date on which
a representative complement of predecessor employees is
on the job. In support of this position the General Coun-
sel cites Canterbury Villa, Inc., 271 NLRB 144 fn. 5
(1984), where the Board noted that the Supreme Court
affirmed its test in NLRB v. Burns Security Services, 406
U.S. 272 (1972). However, in the instant case, no demand
for recognition and bargaining had been made upon Re-
spondent by either union representative in December
1984. The employment of Teamsters unit parts employ-
ees DiBello and Payne was terminated with Respondent
on 26 December 1984, and Respondent thereafter had
only one Teamsters unit employee (Agee) left in its parts
unit.
Counsel for Respondent argues that since the employ-
ment of Teamsters parts employees DiBello and Payne
was terminated on 26 December 1984, only parts em-
ployee Agee was working for Respondent on 9 January
1985, when Teamsters Representative Joggerst accompa-
nied Machinists Representative Meinell to the Respond-
ent and requested recognition and bargaining.
The General Counsel, however, argues that this
change in the Teamsters complement is immaterial, be-
cause the Board had held that even in the event of loss
of majority of a complement of unit employees after a
change of ownership, the remaining unit is presumed to
support the Union in the same proportion as the original
complement employed by the successor, unless such pre-
1052 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sumption is rebutted by objective considerations. John
Ascuago's Nugget, 230 NLRB 275, 286-287 (1977);
Golden State Rehabilitation Convalescent Center, 224
NLRB 1618, 1620 (1976), enf. denied on other grounds
566 F.2d 77 (9th Cir. 1977).
With respect to a subsequent diminution in the majori-
ty employees complement of the successor, the General
Counsel further argues that the Board stated in footnote
5, page 5, that, "it is well settled that the timeframe for
determining what percentage of the purchased employ-
ees are former employees of predecessor is when a repre-
sentative complement of the employer's work force is on
the job." Hudson River Aggregates, 346 NLRB 192 (1979).
Here, there is no dispute that a majority of Teamsters
unit employees were in Respondent 's employ on and for
several weeks after 7 December 1984, while Respondent
continued business operations as successor to Quality.
In an effort to rebut the presumption of Teamsters
unit's continued majority and refute the General Coun-
sel's advocated time for determining majority status, Re-
spondent denies that the Teamsters Union requested rec-
ognition and bargaining . It also argues and advocates a
different time for determining Teamsters unit's majority
status.
Arbeitman testified that Teamsters Representative Jog-
gerst did not request recognition and bargaining when he
accompanied Machinists Representative Meinell to Re-
spondent 's showroom on 9 January. However, I previ-
ously found that both union representatives introduced
themselves and told Arbeitman the names of the respec-
tive unions each represented. Machinists Representative
Meinell then requested recognition and bargaining and
Arbeitman became angry and ordered them to leave the
premises before either representative could say more.
Under these circumstances , I found that Joggerst also re-
quested recognition and bargaining because Arbeitman
obviously understood the purpose of his presence, and he
made both representatives feel that any further request
for recognition and bargaining would be futile.
Without conceding Teamsters Representative Jog-
gerst's requested bargaining when he accompanied Ma-
chinists Representative Meinell to the Respondent on 9
January, Respondent argues that the time for determin-
ing when a majority exists is "when demand for bargain-
ing had been made and a representative complement is
on the job." Indianapolis Mack Truck Sales, 272 NLRB
690 (1984); Grico Corp., 265 NLRB 192 (1979). Under
these authorities , Respondent argues, that Respondent
was not a successor of the Teamsters parts unit employ-
ees because Gerald Agee was the only parts unit employ-
ee in Respondent 's employ on 9 January. The evidence
shows that Agee was in fact the only parts employee in
Respondent 's employ since 27 December 1984. As such,
Respondent argues that the parts unit did not constitute a
representative complement of predecessor employees
even if the Teamsters had in fact requested bargaining on
9 January.
The cases cited by counsel for Respondent are correct,
and in fact , more recently, in Eastone of Ohio, Inc., 277
NLRB 1652 (1986), the Board explicitly stated:
A successor employer . . . is obligated to bargain
with the exclusive bargaining representative of the
employees acquired from the predecessor unless it
demonstrates either that the representative no
longer enjoyed majority support on the date of its
refusal to bargain or that it had a good -faith doubt
of the representatives ' continued majority support.
Conclusions
In the instant case, it was not established that the dimi-
nution and the size of the Teamsters parts unit was the
result of any unfair labor practice committed by the Re-
spondent . It was established by the testimony of Re-
spondent's interviewing agent, Van Hoogstraat, that
predecessor employees , including employee Tyrer, told
him during their interview that they were represented by
a union . I find that the latter communication by the em-
ployees to Van Hoogstraat constituted knowledge suffi-
cient , not only to apprise Van Hoogstraat of such fact,
but also to put him on reasonable inquiry of any specifics
about the representative status of all of the newly hired
predecessor employees . It matters not that Van Hoog-
straat might not have communicated to Respondent's
management what the interviewed employees told him
about their representative status, since Van Hoogstraat
was Respondent 's agent, acting on its behalf. Knowledge
of Van Hoogstraat is imputed to Respondent under these
circumstances.
The evidence is uncontroverted that Respondent hired
a majority of predecessor Teamsters unit employees on
14 December 1984. Thus, it necessarily follows that the
successorship of the bargaining obligation flowed from
the predecessor's recognition of the multiemployer bar-
gaining relationship with the Teamsters unit . And that
bargaining obligation is binding on the Respondent. Zims
Food Liner, Inc., 495 F.2d 1131, 1142 (1974). This is so
even though Respondent purchased only a part of the
Teamsters' bargaining unit which included employees of
other employers. White- Westinghouse Corp., supra; Miles
& Sons Trucking Service, supra.
Nor does the diminution in the Teamsters' parts unit
from three to one parts employees relieve Respondent of
its successor obligation to bargain with the Teamsters
Union . Respondent is still obligated to bargain with the
Union because such diminution does not appear, and it
had not been shown that the diminution had significantly
affected employee attitude . White- Westinghouse Corp.,
supra; Boston-Needham Industrial Cleaning, Inc., 216
NLRB 26, 28 (1975). Moreover, it is noted that Respond-
ent initially employed three predecessor parts employees
in December 1984. Two of those employees (Miller and
Payne) were terminated 26 December 1984. Neverthe-
less, Respondent subsequently employed parts employee
Albert Mick on 7 January 1985. The employment of
Mick appears to indicate that the diminution in the unit
was temporary , rather than permanent.
The Board has held that the burden of proving reduc-
tion in the bargaining unit was not a temporary reduc-
tion , but permanent in character, is on the Respondent.
Emco Steel, Inc., 227 NLRB 989 (1977 ). Respondent in
the instant case has not presented any evidence to estab-
ROYAL MIDTOWN CHRYSLER PLYMOUTH
lish that diminution in the parts unit is not temporary.
The fact that Respondent hired Mick on 7 January 1985,
indicates such diminution was not permanent . I therefore
conclude and find , consistent with the evidence , that the
reduction in Respondent 's parts unit in December 1984
and January 1985, was only temporary and not perma-
nent . Emco Steel, Inc., supra.
Based on the foregoing credited evidence and cited
legal authority , I find that Respondent successor 's obliga-
tion to bargain with the Teamsters Union on behalf of its
parts unit employees , arose when it hired a majority of
the predecessor employees who were a part of a unit
covered by a multiemployer bargaining relationship.
Consequently , when Respondent , pursuant to the Team-
sters Union's 9 January request , thereafter refused to rec-
ognize and bargain with the Union , Respondent violated
Section 8(a)(5) of the Act.
In its answer to the complaint , Respondent affirmative-
ly denied that it is obligated to bargain with the Team-
sters Union , but it did not state why it was not so obli-
gated . Nor did Respondent state during the proceeding
that it had a good -faith doubt of the continued majority
status of the Teamsters unit , as it asserted it had with re-
spect to the Machinists unit . Notwithstanding, at the
conclusion of my evaluation of Respondent 's good-faith
doubt of the Machinists ' majority status, I will also de-
termine whether Respondent had such a doubt with re-
spect to the Teamsters unit.
C. Respondent 's Contended Good faith Doubt of
Machinists ' Continued Majority
Machinists Union in December and January
Respondent concedes that the predecessor Machinists
unit employees represented a majority when Respondent
commenced operations and also on 9 January, when the
Machinists Union requested bargaining . It contends,
however, that Respondent lawfully refused to bargain
with the Machinists and refused to furnish it with re-
quested information , based upon a good-faith doubt that
the Union continued to request a majority of the Ma-
chinists unit.
In support of its contention, Respondent presented tes-
timony of mechanic Robert Bailey and acknowledged
former Quality 's service-writer advisor, now Respond-
ent's service manager, William Pinkley, who had testified
in this proceeding.
Bailey testified that early in December 1984, while
working for Quality, he recalled having discussions with
Service-Advisor Pinkley about working without a con-
tract or in a nonunion shop , and he told Pinkley it would
probably be all right if benefits and wages were similar.
He said that conversation arose after they heard Quality
was going out of business and they were speculating
about a new ownership-whether it would be union or
nonunion.
After the change of ownership in late December or
early January, he recalled teling Pinkley he thought
working conditions at Respondent were better . The shop
was cleaner and they had a little more equipment. He
said these discussions were of a general nature and were
initiated either by himself or Pinkley . At that time, he
1053
said they felt all right without a union and did not see
any reason for having one.
Respondent's service manager, William Pinkley, cor-
roborates Bailey's testimony and further testified that
Shop Steward Jere Tyrer called the Machinists Union on
the day before the change of ownership , and Meinell
came to the shop on 7 December . After the mechanics
were interviewed , Meinell bought them a drink and told
them to go to work, that he would take care of the
union matter . Meinell and mechanic Mazzuca left shortly
thereafter , and Pinkley , Bailey, and Follmer remained
and discussed the benefits offered by the Respondent.
During their discussion , Bailey said Follmer, who did
not testify in this proceeding , made the comment that
with the kinds of benefits offered by the Respondent,
they did not need a union , and he questioned why they
should pay union dues . Pinkley also said during the
Christmas party, Arbeitman asked him how the employ-
ees felt about the Union . He said he told him basically
nobody really cares; that on the day before the change
of ownership , they asked the Union to come out and
help them but the Union did not show up until the next
day.
Manager Pinkley further testified more extensively
about the employees feelings that the Union was not in-
terested in helping them the day before they lost their
jobs and it failed to secure them jobs in a union shop. He
said after the mechanics reported to work at Respondent,
he, Bailey, Follmer and Mazzuca talked about getting a
withdrawal card from the Union. They talked about
trying to collect their last week's pay from Quality.
When they would call Mike, he would tell them the
checks are in, that the Union had the money covered
and would bring it dyer, but the Union would not show
up. Pinkley said Bailey and Follmer talked about retain-
ing an attorney to secure their pay and he (Pinkley) sug-
gested that they all retain the same lawyer to reduce the
cost . They did retain an attorney on the recommendation
of Pinkley but they had not received any money as of
the date of this proceeding.
With respect to the attitude of the mechanics towards
the Union , Pinkley testified that between 1 and 10 Janu-
ary 1985, the mechanics engaged in discussions about the
Union. When he was asked what was said , he said,
specifically , I couldn't tell you, but basically every-
body felt the same way. The business was going
well, we had came from a point where we weren't
having to beg for funds and this and that. We had
money, we could do what we wanted to. We had a
policy in our hand for $ 15,000 of life insurance, we
had cards for Blue Cross Blue-Shield. We had a
profit sharing that they were offering us. We could
put up any amount we want... .
The mechanics wondered if the Union was going to col-
lect their money and they knew the union dues and the
union pension and welfare had never been paid . Pinkley
said Bailey, Follmer, and himself felt that the Union
would be a problem and he reported their sentiments.to
Arbeitman.
1054 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
It is particularly noted , however, that Bailey testified
that he had no problem with the Union before or after
the change of ownership and Follmer did not testify in
this proceeding.
On cross-examination Pinkley admitted he was service
writer and service advisor for predecessor Quality, and
that he is presently service manager performing both
service manager and service writer functions . He also ac-
knowledged that he was aware when he was hired by
the Respondent , that as service manager, he is in a classi-
fication excluded from the Machinists ' bargaining unit.
When Pinkley was asked whether mechanic Bailey ever
told him he did not want a union , Pinkley said yes and in
so many words he did not really care if he had a union
or not . Finally Pinkley said he could not ever recall
Bailey expressly saying he did not want a union. When
Pinkley was asked what did he report to Arbeitman
about the employees ' sentiments about the Union, Pink-
ley said he told Arbeitman that there was a 75-percent
consensus of the employees that they did not want the
Union , that they did not care if they had a union because
the benefits and everything were over and above what
they were getting as a union member.
Conclusion
In evaluating the testimony of Machinists unit employ-
ees'with respect to their sentiments about the Union, it is
first noted that only two unit employees testified on the
subject . They were mechanic Robert Bailey and Service
Manager William Pinkley . Manager Pinkley testified that
during the 1985 Christmas party, Respondent's vice
president , Arbeitman , asked him how the employees felt
about the Union and he replied the employees did not
care because they did not feel the Union helped them
during the change of ownership ; and that there was a 75-
percent consensus not wanting the Union . While I credit
Manager Pinkley's testimony regarding his conversation
with Vice President Arbeitman, I do not credit the au-
thenticity of Pinkley 's reports to Arbeitman about the
union sentiments of unit employees , for the following
reasons.
Although both witnesses testified they talked to each
other about the Union , it is particularly noted that Bai-
ley's testimony in this regard is rather general and equiv-
ocal, very short in duration, and exclusively confined to
conversations he had only with Manager Pinkley. On the
contrary , Manager Pinkley's testimony about such con-
versations is quite specific , of extensive duration , and al-
legedly carried on not only with mechanic Bailey, but
also with mechanics Carlo Mazzuca and Gary Follmer.
However, the record shows that neither Follmer nor
Mazzuca appeared and testified in this proceeding, and
statements attributed to them by Manager Pinkley are
not corroborated or substantiated in the record.
It is further noted that Bailey's limited conversations
with Pinkley amounted to speculation about how they
thought it would be all right working without a contract
in a nonunion shop . Bailey could not recall whether he
or Pinkley elicited this hypothetical sentiment but he ac-
knowledged telling Pinkley the working conditions were
better with Respondent then with Quality, and he agreed
with Pinkley that he did not see any reason for having a
union . Again , Bailey could not recall which of them (he
or Pinkley) induced this hypothetical response . Although
Pinkley testified it was the consensus among unit em-
ployees that they did not need or want the Union, Bailey
denied he ever told Pinkley he did not want the Union.
On cross-examination Pinkley acknowledged Bailey
never made such a categorical statement but simply said
he did not care whether or not they had a union . In fact,
Bailey stated without equivocation that he did not have a
problem wth the Union either before or subsequent to
the change of ownership from predecessor to Respond-
ent. Follmer and Mazzuca did not testify and were not
available to deny or affirm the union sentiments attrib-
uted to them by Manager Pinkley.
While Bailey's testimony about his union sentiments
may appear somewhat negative, indifferent , and equivo-
cal, I am not persuaded that any of his statements to
Pinkley reflected his true sentiments . It is undoubtedly
clear from the uncontroverted testimony of Pinkley that
he is manager of the service department , and as such,
was the leader instigating, articulating , and transmitting
to higher management , unsupported and even erroneous
antiunion sentiments attributed to union employees
(Follmer and Mazzuca). With such unlawful antiunion
instigation by Manager Pinkley , it is understandable why
Bailey's testimony is limited and equivocal . In all reason-
able probability, Bailey was, as witness Hawkins ex-
pressed it, "going with the flow" of Service Manager
Pinkley . Bailey must have assumed it risky to do other-
wise . Consequently , while I credit the positive denials of
Bailey, I do not construe his slightly indifferent , equivo-
cal, and general statements to Manager Pinkley as stating
he did not want the Union.
It is quite clear from the evidence of the very active
and aggressive efforts of Pinkley, that he was subtly
using his managerial influence to encourage unit employ-
ees to abandon the Union . Bailey's testimony about his
union sentiments is very limited , guarded and, at most,
equivocal . The record does not contain any other evi-
dence independent of Pinkley 's testimony , that other unit
employees did not desire the continued representation of
the Union . If the testimony of Bailey did not establish an
unequivocal antiunion sentiment , I am not persuaded that
Mazzuca and Follmer would have expressed antiunion
sentiments even if they had appeared and testified in this
proceeding . This conclusion is especially true when
Pinkley's efforts to undermine the Union is considered
along with the union curiosity expressed by Arbeitman at
the Christmas party, and Pinkley's response to him.
Although it may be argued that Arbeitman was rely-
ing upon Pinkley 's reports to him , the evidence does not
show that Arbeitman received complaints about the
Union from any source other than his service manager,
Pinkley . In his brief, counsel for Respondent raises some
question about the supervisory status of Pinkley . Howev-
er, I do not see Pinkley's status as an issue in this pro-
ceeding. Pinkley acknowledged he is and has been serv-
ice manager of the Respondent since the change of own-
ership , and unit employees confirmed his testimony in
this regard . Moreover , the uncontroverted evidence es-
tablished that Manager Pinkley hired mechanic Thomas
ROYAL MIDTOWN CHRYSLER PLYMOUTH 1055
Hawkins in early February, and he hired mechanic Jere
Tyrer in about mid-February. Pinkley runs the service
department and it was not shown that he shares that au-
thority with anyone else . Thus, I find that Pinkley was a
supervisor within the meaning of Section 2(11) of the
Act. As manager of the service department , Pinkley is
management , and as such , he not only instigated , but en-
couraged unit employees to abandon the Union.
I further find that Manager Pinkley is a member of the
Machinists unit as he was for predecessor Quality, and
that the unit is not less appropriate because he is includ-
ed in the unit, since it is not unusual for service depart-
ments to be so constituted in the automobile service in-
dustry . it is therefore clear from the evidence that Re-
spondent did not have a doubt of the continued majority
status of the Machinists Union. However, if Respondent
had any doubt, certainly this record makes it clear that
such doubt was not a good -faith doubt of the continued
majority status of the Machinists or the Teamsters
Union.
Based on the foregoing evidence and findings under
topics B and C, I further find that by failing and refusing
to recognize and bargain with the Machinists Union and
the Teamsters Union , Respondent violated Section
8(a)(5) and (1) of the Act.
D. Respondent Told an Employee it Would Operate
as a Nonunion Shop
The record shows without dispute, that John Van
Hoogstraat is general manager of Royal Gate Dodge, in
which Respondent's vice president , Harold Arbeitman,
has an ownership interest . On 6 December 1984, Quality
machinists unit and parts unit employees were advised by
Quality that they could avail themselves of an interview
for employment with Respondent (Royal Midtown
Chrysler) on the next day (7 December 1984). On 7 De-
cember 1984 , Van Hoogstraat, on behalf of Respondent,
interviewed 20 or 21 Quality employees, including Ma-
chinists unit employee Jere Tyrer.
Mechanic Tyrer testified that during his interview by
Van Hoogstraat on 7 December, Van Hoogstraat told
him the new "employment would be a nonunion shop"
but that Respondent offered everything comparable to
the union contract , except birthdays. Van Hoogstraat
denied he told any of the applicants he interviewed that
Respondent would not be a nonunion shop. However, he
acknowledged that some or one of the mechanics told
him during the interview, that the employees had a
union contract but he said he did not relate that informa-
tion to Respondent 's vice president , Arbeitman. The lit-
eral affirmative testimonial statement by Tyrer and the
literal testimonial denial by Van Hoogstraat, give the ap-
pearance of an equivocal and genuine conflict in testimo-
ny, which questions honest credibility resolution. How-
ever, when both testimonial versions are considered in
the context of all of the credited record evidence, and
the demeanor of each witness , it becomes clear that
Tyrer was testifying truthfully and Van Hoogstraat was
not.
A review of the record evidence shows that although
employees told Van Hoogstraat during the interview that
they had a union, he made no further inquiry or com-
ment, and said he did not mention it to Vice President
Arbeitman. At this juncture, Van Hoogstraat' s testimony
may be considered believable, even if naively so. How-
ever, when further considered in conjunction with Re-
spondent 's conduct immediately after the change of own-
ership , it becomes even less convincing . Specifically, in
December and early January, Respondent admitted Serv-
ice Manager William Pinkley engaged in conversations
with unit employees about how they felt about the
Union. During the Christmas party, Respondent's vice
president , Arbeitman, asked Respondent 's service manag-
er, Pinkley, how the employees felt about the Union.
Manager Pinkley told him "basically nobody really
cares," the Union has failed to help them. Such curiosity
and hearsay response by management cannot be ignored
when it is considered along with additional events as
they unfolded.
Manager Pinkley continued to engage in discussions
with unit employees about their union sentiments in late
December and early January . On 7 February 1985, Pink-
ley hired mechanic Thomas Hawkins who credibly testi-
fied that when he was hired, Pinkley told him Respond-
ent was a nonunion shop.
Mechanic Jere Tyrer was hired by Pinkley on 15 Feb-
ruary 1985. he credibly testified that in early March
Manager Pinkley told him he "wanted the mechanics to
secure a withdrawal card from the Union because this
was a problem for him, mentioning the Labor Board was
on him." Manager Pinkley was also involved in discus-
sions with other unit employees about securing a with-
drawal card from the Union.
In March , Manager Pinkley was instrumental in
having unit employees sign a letter, prepared by himself,
requesting a withdrawal card from the Union. Moreover,
when Machinists Union Representative Meinell and
Teamsters Union Representative Joggerst visited Re-
spondent Vice President Arbeitman and requested recog-
nition and bargaining, Arbeitman 's reaction was one of
anger and lack of cooperation , and he ordered them to
leave the premises.
It is also noted that Manager Pinkley's statement to
mechanic Hawkins that Respondent was nonunion, is
consistent with what mechanic Tyrer testified Manager
Van Hoogstraat told him . As I observed Tyrer and Van
Hoogstraat testify, I was persuaded by their demeanor
that Tyrer was telling the truth. After evaluating all of
the evidence of record, I was further persuaded that Van
Hoogstraat 's denial that he told Tyrer Respondent was
going to operate nonunion , was not truthful. Additional-
ly, I find from all of the evidence of Respondent's con-
duct that Respondent did not intend to operate with a
union shop. This finding is consistent with all of the evi-
dence of record.
I therefore conclude and find upon the foregoing cred-
ited evidence, that Van Hoogstraat told Tyrer, a union
member and steward , that Respondent was operating
nonunion ; that such statement has a coercive and re-
straining affect upon the exercise of employees' protect-
ed Section 7 rights, and was therefore in violation of
Section 8(a)(1) of the Act.
1056 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that Respondent coerced and restrained
its employees by telling them Respondent would operate
a nonunion business, in violation of Section 8(a)(1) of the
Act, the recommended Order will provide that Respond-
ent cease and desist from engaging in such unlawful con-
duct, and that it take certain affirmative action to effec-
tuate the policies of the Act.
[Recommended Order omitted from publication.]