Witham Buick, Inc.

National Labor Relations Board - Board Decisions

Nov 23, 1962

139 N.L.R.B. 1209 (N.L.R.B. 1962)

WITHAM BUICK, INC. 1209
inflow. Assuming that such inflow constitutes either direct or indirect
inflow as such terms are defined in Siemons Mailing Service, supra-
an assumption which appears to be reasonable-the Employer's oper-
ations herein would satisfy the Board's standard for the assertion of
jurisdiction over nonretail enterprises.
Accordingly, the parties are advised, under Section 102.103 of the
Board's Rules and Regulations, Series 8, as amended, that, oil the facts
submitted and on the assumption hereinabove made, the Board would
assert jurisdiction over the Employer's operations with respect to dis-
putes cognizable under Sections 8, 9, and 10 of the Act.
Witham Buick , Inc. and Local 470, International Brotherhood of
Teamsters , Chauffeurs, Warehousemen & Helpers of America,
Independent . Case No. 4-CA-2574. November 23, 1962
DECISION AND ORDER
On August 2,1962, Trial Examiner Jerry B. Stone issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief and the General Counsel
filed a brief in support of the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report and the entire record in the case, including the ex-
ceptions and briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, except as noted below.
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner.'
' The notice appended to the Intermediate Report is hereby amended by deleting the
phrase "This notice must remain posted for 60 days from the date hereof ," and substitut-
ing therefor the phrase "This notice must remain posted for 60 consecutive days from the
data of posting"
139 NLRB No. 101.
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed on March 6 and April 9, 1962, by Local 470, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America,
Independent, herein called the Union, the General Counsel of the National Labor
Relations Board, by the Regional Director for the Fourth Region, Philadelphia,
Pennsylvania, issued his complaint dated April 27, 1962, against Witham Buick,
Inc., herein called the Respondent. In substance the complaint alleged that Re-
spondent had engaged in and was engaging in conduct proscribed by Section 8 (a) (1)
and (5) of the National Labor Relations Act, herein called the Act, and that such
conduct affected and was affecting commerce as set forth in Section 2(6) and (7)
of the Act. Respondent's answer as amended at the hearing admits many of the
facts pleaded in the complaint, but denies the commission of any unfair labor
practices.
Pursuant to appropriate notice, a hearing was held before Trial Examiner Jerry
B. Stone at Wilmington, Delaware, on June 4 and 5, 1962. All parties were repre-
sented at and participated in the hearing, and were afforded the right to present evi-
dence, to examine and cross-examine witnesses, to offer oral arguments, and to file
briefs. Briefs from the General Counsel and Respondent have been received and
considered.
Upon the entire record in this case, and from my observation of the witnesses, the
following findings of fact, conclusion of law, and recommendations are made:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
For a number of years prior to February 9, 1962, Wilmington Auto Sales Com-
pany, herein called Wilmington, a corporation of the State of Delaware, operated
as a Buick franchise' dealer at Wilmington, Delaware, and sold and serviced new
and used cars. Wilmington also conducted a realty and investment business at the
same location. During the year ending September 18, 1961, Wilmington made
sales in excess of $50,000 to customers outside the State of Delaware, and made
purchases from outside the State of Delaware in excess of $50,000. Wilmington's
total sales during the same period exceeded $500,000. Wilmington ceased opera-
tions as a Buick and Opel franchise dealer on February 9, 1962, but continued as a
realty and investment company at a different location.
Witham Buick, Inc., herein called Respondent, a corporation of the State of
Delaware, was incorporated on February 5, 1962, and commenced operations as a
Buick and Opel franchise dealer at 2100 Pennsylvania Avenue, Wilmington, Dela-
ware, on February 19, 1962, and has engaged in the business of selling and servicing
new and used cars since that date. The -Respondent has increased the volume of
sales as compared to Wilmington Auto by 45 percent during the period of time
February 19, 1962, to June 5, 1962. The Respondent estimates that during the
year 1962 it will purchase goods and materials valued in excess of $50,000 directly
from points outside the State of Delaware. Respondent also estimates that for the
calendar year 1962 its gross volume of business will exceed $500,000. I find that
Respondent is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act, and that it will effectuate the policies of the Act to assert jurisdiction in
this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer as amended at the hearing admits, and it is
found that Local 470, international Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, Independent, is a labor organization within the
meaning of the Act.
III THE UNFAIR LABOR PRACTICES
The major question for resolution here is whether or not the Respondent was
legally obligated to recognize and bargain collectively with the Union pursuant to
Board certifications that the Union represented the majority of the employees in
certain appropriate units. The certifications were issued on October 19, 1961, in
Cases Nos. 4-RC-4710 and 4-RC-4745 involving employees of Wilmington. It
is undisputed that the Union has requested meetings for the purpose of negotiations
'Buick franchise dealers also hold Opel franchises Both Wilmington and Respondent
had an Opel franchise
WITHAM BUICK, INC. 1211
concerning the certified units and that the Respondent has declined to recognize or
bargain with the Union. It is also undisputed that Respondent, with knowledge of the
certification of such bargaining units but without consultation with the Union,
consulted some of the employees as to certain changes concerning pay rates and
fringe benefits including insurance and vacation rights, and established such changes
in a written policy effective on February 19, 1962, the date the employees reported
to work on the Respondent's payroll.
A. Factual setting, October 11, 1961 to March 27, 1962
October 11, 1961: After a Board-conducted election , held on October 11, 1961,
pursuant to a Stipulation for Certification Upon Consent Election (Case No.
4-RC-4710), the Union was certified as the exclusive bargaining representative of
all employees in an appropriate unit which consisted of "shop personnel, but ex-
cluding salesmen, office and shop clericals, and supervisors as defined in the Act,"
of Wilmington.
After a Board-conducted election, held on October 11, 1961, pursuant to a
Stipulation for Certification Upon Consent Election (Case No. 4-RC-4745) the
Union was certified as the exclusive bargaining representative of all employees in
an appropriate unit which consisted of "salesmen, but excluding shop personnel,
office and shop clericals, and supervisors as defined in the Act" of Wilmington.
November 1 and 21, 1961: The Union and Wilmington met on November 1 and 21,
1961, for contract negotiations . On or about November 21, 1961, Wilmington
Company notified Buick Motor Division, General Motors Corporation, herein called
Buick, that it was terminating its franchise agreement.2 The Union was notified
of this action on November 21, 1961. Immediately thereafter the employees were
notified that the franchise and their employment would be terminated on Decem-
ber 31, 1961. William H. Witham, then vice president of Wilmington, attended
the November bargaining sessions.
November 22 or 23, 1961: William H. Witham notified Buick on November 22
or 23, 1961, of his desire to be considered an applicant for the new dealership.
December 11, 1961: William H. Witham secured a commitment from Wilmington
on December 11, 1961, that he could lease the property at 211 Pennsylvania Avenue,
Wilmington, Delaware?
December 13, 1961: William H. Witham filed on December 13, 1961, a formal ap-
plication with Buick for the area franchise.4 Submitted with the application were
copies of financial and lease commitments.
January 26, 1962: Buick advised William H. Witham on January 26, 1962, that
he was in a favorable position to get the franchise provided that he had the capital,
the facilities, required personnel, and other requirements as previously stated to
them by him. Buick advised that the franchise would be effective sometime in
February, approximately February 19, 1962.5
January 29, 1962: Wilmington, on January 29, 1962, advised its employees that
the expected date of the appointment of the new dealer was February 19, 1962, and
that Wilmington's final date of operation would be February 9, 1962.
William H. Witham caused to be distributed to the employees at Wilmington,
generally by the Wilmington supervisors and himself, applications for employment
at the new dealership. This distribution occurred sometime between January 29
and February 9, 1962. Three of the typical applications were distributed on
January 29, 1962.
February 5, 1962: Respondent , on February 5, 1962, was incorporated in the
State of Delaware. William H Witham was the sole owner.
February 5 to 9, 1962: During the last week of Wilmington's operation (Feb-
ruary 5 to 9, 1962) William H. Witham met with some of the Wilmington employees
and discussed his plans for the new dealership, including his wage plan and the
fringe benefits (insurance, vacation, etc.). Several employees indicated a preference
2 Whether the original notification to Buick specified the specific time of termination is
not clear In any event by agreement between Buick and Wilmington, the latter's
franchise was to terminate on some date between December 31, 1961, and February 28,
1962 The date was left open in order to allow Buick time to select a new dealer and to
avoid it gap between dealerships
' It was stipulated that "no other premises were available that would have been suitable
or ndequnte for Vie operations of a Buick dealership
E There were other applicants for the franchise
5 Wilmington had no control over the selection of the dealer.
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for a different wage plan and William H. Witham indicated that the wage plan
could be modified as suggested.
February 9, 1962: Wilmington, on February 9, 1962, terminated its Buick and
Opel franchise operation and the employment of its shop, parts, sales, and office per-
sonnel whose services were employed in the conduct of its franchise operation.
Wilmington continued in existence as a corporation engaged only in investment
and realty functions at a new location in the city of Wilmington, Delaware.
February 12, 1962: The Union, on February 12, 1962, by letter addressed to
Wilmington, attention of Mr. William H. Witham, requested a meeting for bargain-
ing negotiations between itself and the new dealership.
February 14, 1962: Respondent, on February 14, 1962, replied to the Union's
request of February 12, 1962, declining, in essence , to negotiate because "since the
certification of the Union you represent was to Wilmington Auto Sales Company,
it has no effect whatever with respect to Witham Buick, Inc." The Respondent con-
tended that it was not a successor to Wilmington.
February 19, 1962: Respondent, on February 19, 1962, commenced operations
as a Buick and Opel franchise dealer enaged in the retail automotive business,
the sale and service of Buick and Opel automobiles, and the sale and service of
used cars at 2100 Pennsylvania Avenue, Wilmington, Delaware.6
March 15 and 27, 1962: The Union, on March 15, 1962, in essence reiterated its
demand for negotiations concerning the certified bargaining units. The Respondent,
on March 27, 1962, in essence, reiterated its declination to negotiate on February 14,
1962, based upon its position that it had no obligation to bargain since it was,
not a successor.
B. The successorship question
1. Comparative Wilmington and Respondent employee complements
Employees of Wilmington who were selected for hiring by Respondent were told
at various times that they were to report for work on February 19, 1962. On
February 19, 1962, Respondent commenced operations with 18 shop (including parts)
employees, and with 6 combination new- and used-car salesmen. The normal
complements at Wilmington had included 25 shop (including parts) employees,
6 new-car salesmen, and 3 used-car salesmen. The Respondent commenced opera-
tions with 7 clerical and supervisory employees as contrasted with Wilmington's 16
clerical and supervisory employees. Between February 19, 1962, and May 29, 1962,
Respondent increased its shop (and parts) employees to 23. Respondent's super-
visory and clerical employees numbered 12 at the time of the hearing on June 4
and 5, 1962.
2. Retention of Wilmington employees by Respondent
When the Respondent commenced operations on February 19, 1962, 15 of his 1S
shop (and parts) employees and 5 of his 6 combination new- and used-car salesmen
were former employees of Wilmington who had been employed at the time of the
Board's election. On May 29, 1962, 14 shop (and parts) employees, 5 salesmen,
and 7 supervisory and clerical employees of the former Wilmington complement
were still employed at Witham.?
3. Comparative supervisory structure and personnel of Wilmington and Respondent
A composite of the testimony and exhibits reveals the respective comparative super-
vision at Wilmington and Respondent to be as herein set out:
Wilmington Respondent
John F. Porter, Jr.-president and William H. Witham-president and
owner. owner.
e Respondent 's franchise was granted by Buick on the personal qualifications and in-
tegrity of owner, William II. Witham. Wilmington's franchise, similarly, had been
granted on the personal qualifications and integrity of owner, John F. Porter, Jr
7Respondent's President Witham testified that at the time of the hearing, there were
19 shop employees. It is not clear whether he was speaking of the 23 shop (and parts)
employees on the payroll as of May 29, 1962 , minus such employees classified as car
delivery, janitor, used-car lot boy, and carwash positions, or whether there had been
several layoffs between May 29 and June 5, 1962 Elsewhere his testimony indicated the
hiring of mechanics not included on the May 29, 1962 , list. It must be assumed such
hirings, if any, were subsequent to May 29, 1962.
WITHAM BUICK, INC. 1213
Wilmington Respondent
William H. Witham vice president, William J. Carnigan-vice president,
general manager (heavy interest in general manager and sales manager.
sales area).
William J. Carnigan-new-car sales
manager, used-car sales manager.
Robert Denton-service manager. Robert Denton-service manager.
Whitten-body shop foreman. No position.
Robert M. Schreiber-parts department Banjamin Vicaro-parts manager.
manager.
4. Comparative shop (and) parts personnel job assignments of Wilmington and
Respondent
A composite of the testimony and exhibits reveals the respective comparative job
assignments of the 15 Wilmington employees (shop personnel) hired by Respondent
on February 19, 1962, to be as herein set out:
Wilmington Respondent
James L. Benning-body shop me- James L. Bening body shop.
chanic.
Frank R. Bramble-mechanic (cus- Frank R. Bramble-used-car mechanic.
tomer tune-up).
Edward E. Comfort-car delivery. Edward E. Comfort-car delivery.
James F. Dodd, Jr.-painter. James F. Dodd, Jr.-body shop painter.
Richard F. Dodd-painter. Richard F. Dodd-body shop painter.
James J. Dolan-mechanic. James J. Dolan-mechanic, get new car
ready.
Earnest Eaddy-janitor. Earnest Eaddy-janitor.
Orlan L. Eddy-mechanic. Orlan L. Eddy-mechanic.
George E. Hazzard-polisher. George E. Hazzard-new- and used-car
polisher.
Joseph F. Kienle, Jr.-transmission Joseph F. Kienle, Jr.-transmission me-
mechanic. chanic.
Bernard A. Lynam-mechanic. Bernard A. Lynam-mechanic.
James C. O'Neal-counterman (parts). James C. O'Neal, counterman (parts).
William J. Saunders-mechanic (body William J. Saunders-body shop.
shop).
Willie E. William-lot attendant. Willie E. William-used-car lot boy.
Peter Ne Smith, Jr -wash rack opera- Peter Ne Smith, Jr.-lubrication.
tor.
Wilmington's shop personnel employee complement at the time of the election
had included in addition to the employees listed above, four mechanics, one grease-
rack operator, one counterman (parts), and one driver (chauffeur). Witham,
Respondent's president, testified that he abolished (1) one polisher position; (2)
a polisher position held by an ex-gardner; and (3) a chauffeur's (driver's) position°
Prior to the February 9, 1962, Wilmington termination date, Mechanic Cutchen and
Mechanic (transmission) Tilghman had left Wilmington's employment. During the
last week of Wilmington's operations, Kienle had been transferred to the mechanic
(transmission) position.
Respondent on February 19, 1962, hired additionally three employees, who had
not worked at Wilmington, in positions as carwash man, mechanic, and in the new-
car department (polisher).9 Between February 19, 1962, and April 27, 1962,
Respondent hired other employees, none of whom had worked at Wilmington. Of
the employees hired, one was assigned as a counterman in the parts department,
and two were hired as mechanics. Between April 27 and May 29, 1962, Respondent
hired additional employees, none of whom had worked at Wilmington. One of
these employees was hired as a body shop man and one as a mechanic second class.
8 The Respondent also abolished a position described as switchboard operator. This
position is not within either of the appropriate units referred to in this case
Y The record reveals that Wilmington had four polisher positions General Counsel's
Exhibit No 4-A referring to Respondent's employees reveals no position designated as
polisher ; however, Respondent's President Witham testified that employee Howard was
a polisher-new- and used-car department . By a composite of testimony and job de-
scription set forth as to other employees and a process of elimination , it appears that
Willie Waterman, a new employee, was hired as a polisher.
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Former Wilmington employee Saunders, a mechanic, had left the employment of the
Company by April 27, 1962.
Respondent's President Witham had planned and had so indicated to the me-
chanics at Wilmington during the week of February 5 to February 9, 1962,10 that
he intended to change from specialist mechanic to overall mechanic. He also testi-
fied to the effect that this plan had only been effectuated to a degree, that his aim,
however, was to develop mechanics with overall ability. Respondent, in order to
obtain the franchise, had to demonstrate that it had the required personnel. Re-
spondent had, therefore, hired mechanics on its knowledge of their abilities and on
the basis of availability. Respondent still has mechanic specialists, although it has
hired some general mechanics. At the time of his meeting with the five mechanics,
Respondent President Witham advised that he was instituting a guaranteed system
of work whereby an employee would have to correct any of his work not properly
done. This system was instituted on February 19, 1962.
Wilmington, in addition to the service manager, had employed two service sales-
men,xl one of whom was a full-time service salesman, and one who was on the
schedule desk. Respondent, in addition to employing the full-time service salesman,
has added a new full-time service salesman, and a new man to handle the schedule
desk.12
Wilmington's service department operated on an indirect service followup system.
Respondent instituted on February 19, 1962, a complete service analysis where
complete shop orders were sent to Flint, Michigan (Buick) for analysis and for help.
Mechanics employed by Wilmington and Respondent owned or own their personal
work tools; the larger tools and heavy equipment were and are provided by the
dealership.
Parts employees were included in the shop personnel unit certified in Case No.
4-RC-4710. At Wilmington the two parts employees were supervised by Robert
M. Schreiber. One of the two parts employees (countermen) was James C. O'Neal,
who was employed by Respondent on February 19, 1962. The Wilmington Parts
Manager Robert Schreiber and Counterman Elias L. Stevens were not employed by
Witham. The ultimate complement at Witham of parts personnel included Ben-
jamin Vicaro, parts manager, and James J. Breslin as counterman. The evidence
reveals that Wilmington stocked a limited type of parts, maintained no inventory
control, and included accessories affixed to cars as belonging to parts inventory.
Witham installed a new electronic parts inventory and order system with daily post-
ing, maximum and minimum established number of specific parts, expanded the
type of parts kept in inventory, and recorded accessories affixed on cars as being
affixed to cars and not as just accessories. Employee Breslin was hired to maintain
this new inventory system which included an IBM-type card for use in ordering
parts. The function of the parts department remained similar in purpose to that
at Wilmington. This function was to supply parts to Respondent's mechanics for
service to repair cars, and to supply parts to outside purchasers and to independent
garages.
5. Comparative sales job assignments of Wilmington and Respondent
Wilmington had a split sales force with six new-car salesmen under new-car sales
manager, Harold J. Carnigan, and three used-car salesmen under used-car sales
manager, William F. Metten. Vice President and General Manager Witham con-
centrated his efforts in the field of sales. The right, but not the responsibility, existed
that any salesman could sell either new or used cars. Very few of the salesmen,
however, actually sold cars in the category to which they were not assigned.
Respondent commenced operations on February 19, 1962, with six combination
new- and used-car salesmen under the supervision of Harold J. Carnigan, general
manager, vice president, and sales manager.13 As the description of this job implies
these combination salesmen duties were to sell new and used cars.
10 Respondent's President Witham testified in effect that he talked with five of the
mechanics about his plans, wage rates, and fringe benefits during the hot week of Wilming-
ton's operation (February 5 to 9, 1962) By a composite of the exhibits and testimony,
and a process of elimination, it is revealed that at least some of these five mechanics
were included in the employees who reported to work for Respondent on February 19, 1962.
11 These employees are not within the classification of the employees in either of the
bargaining units involved herein.
12 Respondent President Witham testified that the replaced schedule deskman had been
a serious irritant to the shop personnel.
u Five of these salesmen were former Wilmington salesmen.
WITHAM BUICK, INC. 1215
6. Comparative pay rates and fringe benefits of Wilmington and Respondent
Respondent, compared to Wilmington, instituted certain changes concerning pay
rates, insurance benefits, and vacation rights upon its commencement of operation on
February 19, 1962. The pay rates and insurance benefits were more favorable
to the employees than the ones in existence at Wilmington. The vacation rights,
if viewed in the abstract, were more beneficial to employees than those in existence
at Wilmington. The record is barren as to the length of service of the old Wilming-
ton employees, and it may be that they would have enjoyed the same length of
vacation currently under either the Wilmington or Respondent's plan. Their vaca-
tion pay in any event would be on a different basis. New employees, it is clear,
received more favorable vacation rights under Respondent's plan. Set out herein
is a comparison of such pay rates and fringe benefits.
Pay Rates and Fringe Benefits
Wilmington Respondent
Pay Rates (Mechanics) 14 Pay Rates (Mechanics)
$1.40 to $2 per hour: 15 45 percent $2 per hour: 50 percent mechanics/
mechanics/55 percent house flat rate 50 percent house flat rate 1 week settle-
(record does not reveal whether 1 week merit.
or more for adjustment of flat rate with
hourly pay).
Insurance (Mechanics and salesmen) Insurance (Mechanics and salesmen)
Did not provide free life insurance. $2,000-at 60 year $1,000; 65, $500.
Company pays for life insurance.
Employee pays costs for accident in- Company pays health and accident
surance-however, gets it for less (than insurance with increase of benefits from
others). $15 per week to $30.
Medical and hospital insurance for Medical and hospital insurance paid
employees paid by Company. by Company.
Vacation (Mechanics and salesmen) Vacation (Mechanics and salesmen)
1 to 3 years' employment=l week's 1 year employment=2 weeks' vaca-
vacation. tion.
3 years=2 weeks' vacation.
Weekly vacation pay-40 hours at Weekly vacation pay-1/50 of annual
hourly rate. earning.
Miscellaneous
Respondent instituted dinner meetings with employees wherein they were en-
couraged to bring their problems to management. The evidence reveals that Re-
spondent would listen to and consider employee grievances wherein at Wilmington
the owner was not accessible for such discussion.ie
In addition to the foregoing it is noted that (1) Respondent commenced opera-
tions as a new corporation 17 with a written policy governing most terms and condi-
tions of employment as contrasted to the lack of such written policy at Wilmington;
14 The record does not reveal clearly the salesmen's method of pay Respondent Presi-
dent Witham testified as to vacation pay, however, that at Wilmington salesmen's vacation
pay was based on a flat rate of hourly pay tunes 40 hours per week The record reveals
that Respondent now awards bonuses to salesmen with highest sales
15 As best gleaned from the record it appears that mechanics were guaranteed a dollar
amount per hour. A flat rate determination per job with 45 percent of the labor cost for
the mechanic and 55 percent of the labor cost for the Company was used to compute
wages, and the employee received the guaranteed wage or the flat rate whichever was
highest during the settlement term. It is not clear at Wilmington whether the settlement
was on a 1-week or 2-week term. At Respondent's the percentage of flat rate was changed.
10 The record also reveals criticism of Wilmington by Respondent President Witham re-
lating to managerial efficiency wherein Wilmington retained certain employees in certain
positions because of years of service and loyalty.
17 The name Wilmington Auto Sales Company was not available since Wilmington con-
tinued in existence for other functions. Respondent also states he would not have selected
such name because of the reputation associated with the name. The record reveals no
financial connection between Wilmington and Respondent.
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) Respondent, after qualification, writes casualty insurance, as Wilmington did; 18
(3) Respondent advertised as a "new" dealer; 18 (4) Respondent utilizes Buick
schools for its employee training wherein the record reveals no utilization of such
schools, although available, by Wilmington.
The evidence reveals that Wilmington, pursuant to its agreement with Buick,
could have turned its inventory of new cars, parts, and accessories back to Buick.
By agreement between Buick, Wilmington and Respondent, Respondent purchased
the new-car inventory (32 new cars), parts, and accessories from Wilmington. This
eliminated the necessity of packaging and shipping such items from Wilmington,
and the reshipment of substantially the same items from Buick to Respondent. Re-
spondent in addition purchased some furniture and office equipment, 90 percent of
its heavy equipment from Wilmington, and 5 (of 30) of Wilmington's used-car
inventory.
Respondent purchased additional new cars, parts, and accessories from Buick
and also purchased some additional office equipment and furniture. In the latter
category would be included items such as the new inventory system equipment.
A new-car purchaser of a Buick receives a coupon entitling the purchaser to a
1,000-mile or 30-day free checkup. This coupon is redeemable at any Buick dealer
and is valued at $15. To avoid bookkeeping problems with Buick, and because
customers were local, Respondent agreed to accept Wilmington customer coupons
and to submit them to Wilmington instead of Buick. Wilmington in turn paid the
$15 to Respondent. Warranty jobs on used cars were handled similarly.
Respondent, when operations were commenced on February 19, 1962, in relation
to Wilmington assumed no obligations, purchased no accounts receivable, assumed
no liability or other insurance; Respondent assumed no obligations to pay accounts
payable. Respondent purchased new city-business licenses and was considered as
a new employer for workmen's compensation purposes
Where Wilmington purchased its new cars by cash, Respondent purchased on a
floor plan wherein the bank pays for the cars as shipped and Respondent pays the
bank for the particular car sold when sold. The Respondent handles customer
financing of cars primarily through its placement of chattel mortgages with the
Bank of Delaware. If the customer defaults the ownership of the car passes to the
bank. A secondary outlet with GMAC is rarely used by Respondent. Under the
GMAC financing arrangement, Respondent must repurchase the loan contract if
the customer defaults in payment.20 Wilmington principally used the GMAC
financing arrangement. Wilmington used a secondary line of financing with Com-
mercial Credit Corporation, and a third line of financing with the Farmers Bank in
Newark.
Summary
The differences and similarities have been carefully considered to determine
whether the facts concerning Respondent and Wilmington constitute a substantial
change or whether they constitute a substantial continuation of the same type of
enterprise. The facts reveal that such changes as have occurred are not substantial
and that the Respondent has continued substantially the same enterprise as existed
at Wilmington.
In making this determination all the facts as heretofore set out have been con-
sidered. Respondent, the same as Wilmington, has operated a Buick franchise
dealership, at the same location, and under a local owner, performing the same type
service and functions. Basically the same type and lines of supervision have been
continued by Respondent as had existed at Wilmington. There has been consolida-
tion and elimination of certain supervisory positions as to the selling function at
Respondent as compared to Wilmington. The elimination of two supervisory posi-
tions in the selling function has been accomplished by the consolidation of such
functions in one man (Mr. Carnigan, vice president, general manager, and sales
manager). Similarly one supervisor has been eliminated in the service function by
leaving the supervision of body shop employees under the service manager. The
other aspects of supervision have been continued in the same manner. Respondent,
as Wilmington, has the following main breakdown of employees, shop and parts
department, service salesmen, salesmen, and office employees. Respondent, as com-
pared to Wilmington, has made certain minor changes. Many of the employees
Is At Wilmington , Office Manager Thomas wrote casualty insurance , and at Respondent's,
Owner Witham writes such insurance.
1e A brother of Porter, Wilmington' s owner , sells and advertises as a "Porter" family
dealer in another town
20 Respondent President Witham referred to this in his testimony as "the repurchase
of paper."
WITHAM BUICK, INC. 1217
now work on or sell new and used cars whereas at Wilmington they worked on or
sold only one category-new or used cars.
Respondent, as compared to Wilmington, has continued basically the same super-
visors in the same areas of supervision. The supervisory changes, in essence, com-
pare to a promotion of Mr. Witham from vice president to president (and owner),
and to a promotion of Mr. Carnigan from sales manager to vice president and with
a continuation of his old duties as expanded. A new parts manager is now employed,
but as at Wilmington, the parts manager supervises only two employees. A new
office manager is now employed over the office force.
The functions and purposes of the various departments have continued at Respond-
ent as they had at Wilmington. The Respondent intends to develop the use of
"overall" mechanics, but at the initial outset on February 19, 1962, and at the time
of the hearing Respondent has continued the use of a number of "specialist" me-
chanics even though some of the newly hired mechanics are "overall" mechanics.
Respondent's parts department employees are required to maintain a daily inventory
of parts, and to use IBM-type cards as compared to a nonsystematic control of parts
before. Respondent has continued with substantially the same employees personnel.
In essence, Respondent, with substantially the same employees as Wilmington,
utilizes and employs his employees on the same type of work as they performed at
Wilmington. It is considered that the reassignment of personnel as previously re-
flected is consonant with normal reassignment in any unit. There is no real variance
in job duties and functions in the work required to service or sell a new or used car
as to work required to service or sell both. Neither is there more than a superficial
variance in the work of the parts department employees. This variance would ap-
pear to be the same type that occurs in any operation that grows or improves and
in no sense would appear to change community of interest or employees.
In the factual pattern of this case it is not considered that bookkeeping changes,
employment of an additional service salesman, different personnel on the service
department scheduling desk, different insurance, etc., different financing arrange-
ments by the Company in purchasing cars, or methods of inventory, reveal a sub-
stantial change. Respondent President Witham testified with respect to his book-
keeping changes, that as "individual businessmen we handled quite a few things
differently." As indicated by Respondent's president, these matters are properly
within the area of management prerogative.
Contrary to Respondent's contention that these management prerogative differ-
ences reveal a change from Wilmington so as to refute the successorship theory of
General Counsel, it is found that such differences underscore the continuation of a
"local owner" Buick dealership. Respondent, even as Wilmington before, has
certain areas of local management prerogatives.
Respondent, as compared to Wilmington, operated with certain pay and fringe
benefit differences and with a more amenable relationship as to the handling of
employee grievances. It is obvious that Respondent's wage rates and fringe benefits
do not change the type of employing enterprise or the units involved. In fact, such
changes as devolved are in the same general area as had existed at Wilmington.
Thus wage rates at both consisted of dollar amounts per hour contrasted to a flat
rate percentage, insurance benefits were offered at both, although of different degree.
The Trial Examiner has considered Respondent's contention that its change in em-
ployment policies and employer-employee relationship as to handling of grievances,
ideas, suggestions, problems, salesmen dinners, and bonuses, resulting in the elimina-
tion of the discontent that existed at Wilmington reveals that it is not a successor.
I am convinced, in the factual pattern of this case, that the test is the measurement
of structural differences rather than the differences of policy application that may
result from the individual owner or supervisors. Employees at both Wilmington
and Respondent look to the local management for the processing of their grievances,
ideas, suggestions, problems, salesmen dinners, and bonuses. The employing struc-
ture at Respondent remains the same as at Wilmington regarding the employer-
employee relationship.
Board law is clear that the question of successorship depends upon whether the
employing enterprise remains substantially the same. The determination of whether
the enterprise remained substantially the same must be based upon an overall evalu-
ation of the facts, and not upon a mechanical tabulation of the separate facts of
this case. Depending upon the similarities and dissimilarities the pursuasive facts
in different cases vary. The evidence in the instant case reveals and it is found, that
Respondent has operated an enterprise since February 19, 1962, which as compared
to Wilmington, is substantially the same enterprise, same organizational structure,
with the same type supervisors and employees, and the same supervisory and em-
ployee personnel, engaged in the same functions and duties, and is a successor to
Wilmington within the meaning of Board law.
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The determination of Respondent as a successorship is supported by similar find-
ing in Board cases which concerned factual situations which may vary as to some
particular facts, but which contain substantially the same grouping of similar facts 21
The Appropriate Units
The complaint alleges, the answer as amended at the hearing admits, the Board
so certified on October 19, 1961 (in Case 4-RC-4710, see 1. below, and in Case
4-RC-4745, see 2. below), and it is found that the following units are the appro-
priate units for purposes of collective bargaining within the meaning of the Act:
1. Shop personnel, but excluding salesmen, office and shop clericals, and
supervisors as defined in the Act.
2. Salesmen, but excluding shop personnel, office and shop clericals, and
supervisors as defined in the Act.
The Refusal To Bargain
The Union by letter of February 9, 1962, addressed to "Wilmington Auto Sales
Co., Attention: Mr William Witham" and commencing with the salutation "Dear
Mr. Witham," advised Mr. Witham of its certification as bargaining representative
on October 19, 1961, as to the shop employees and salesmen, and requested the
successor firm, of which Mr. Witham was to be a part, to meet to negotiate a contract
covering the terms and conditions of employment of employees in the respective
certified units. The facts reveal that Mr. Witham was cognizant of the certification
of the respective units by virtue of his appearance at bargaining sessions on behalf
of Wilmington with the Union on November 21, 1961. On February 14, 1962,
Mr. William H. Witham responded to the Union stating his position that Respondent
was not a successor to Wilmington in any respect, and that certification of the Union
for employees at Wilmington had no effect whatever with respect to Respondent,
and that he saw no purpose to be served by the meeting requested by the Union.
On March 15, 1962, the Union made another request for a meeting to negotiate
a contract covering terms and conditions of employment of the employees covered
by the October 19, 1961, certification. By letter dated March 27, 1962, Respondent
replied to the Union's March 15, 1962, letter stating that Respondent was not a
successor of Wilmington and did not believe it had any obligation to bargain
pursuant to the Union's certification at Wilmington.
Respondent President Witham met during the week commencing on February 5,
1962, with five mechanics, after hours and away from Wilmington, to discuss with
them what plans had been formulated and what scales of pay had been established
in his mind for the new dealership. As the plans were discussed, several mechanics
mentioned that they would prefer that wages be based on a guaranteed wage rate
of $2 per hour coupled with 1 week settlement against flat rate as contrasted to his
plan of $2.25 per hour guarantee, 2-week settlement against flat rate of 50 percent for
Company and 50 percent for employee. Witham informed the mechanics that this
could easily be worked out, and that it was a matter of settlement of I week or 2
weeks, and that the basic rate was determined on that, whichever they preferred. On
21 Cruse Motors, Inc , 105 NLRB 242 • The facts in this case are not only factually simi-
lar but it is noted that Cruse, like Respondent, was a new corporation commencing to run
an automobile franchise dealership, wherein the old franchise dealer continued In exist-
ence at a different location The instant case has more persuasive facts in that O'Keefe,
Cruse's predecessor, continued in the automobile field.
Auto Ventshade, Inc, 123 NLRB 451: Predecessor Ventshade terminated operations on
May 3, 1957, and Auto Ventshade, Inc, the successor, commenced hiring on May 20, 1957.
In the instant case, Respondent commenced operations 1 week after the predecessor
ceased operations In the meantime the predecessor's employees who were hired had
termination pay of 1 week.
Other cases with facts substantially similar to the Instant case, see Ugite Gas Incorpo-
rated, 126 NLRB 494; Royal Brand Cutlery Company, 122 NLRB 901 ; and Colony Mate-
rials, Inc, 130 NLRB 105 (The factual pattern of the Colony Materials case is prac-
tically identical to the instant matter )
I have considered but do not concur with Respondent's contention that the facts in
NLRB v. Alamo White, 273 F. 2d 238, are persuasive that a successorship does not
exist in the instant case. Unlike the aforementioned case, Respondent, like predecessor
Wilmington, has continued as a local Buick franchise dealer. In the Alamo White case,
the alleged successor changed from a constituent part of a large corporation to an inde-
pendent enterprise.
WITHAM BUICK, INC. 1219
February 19, 1962, Respondent commenced operations with the wage-rate plan sug-
gested by the employees. The Respondent's wage-rate plan varied from, and its
insurance benefits were greater than, those extended by Wilmington. The Respondent,
as contrasted to Wilmington, operated with a written policy covering most conditions
of employment.
It is clear then that the Union certified as exclusive bargaining representative for
the employees in the appropriate units, made proper negotiations requests, and the
Respondent has refused to negotiate and has ignored the Union as bargaining repre-
sentative. With knowledge of the Union's status the Respondent, as compared to
Wilmington, and without consultation with the Union, but with direct consultation
with prospective employees in groups and individually, consummated its direct deal-
ings with the employees by altering wage rates and fringe benefits when it commenced
operations on February 19, 1962. It is therefore concluded and found on the basis
of the entire evidence that on and after February 14, 1962, Respondent refused to
bargain collectively with the certified Union as the exclusive representative of Re-
spondent's employees in the appropriate units 22 It is found that by such refusal to
bargain with the Union on and after February 14, 1962, and by the establishment
of altered wage rates and fringe benefits, without consultation with the Union but
with group and individual consultation with employees, Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(5) of the Act,23 and it is
further found that by such conduct Respondent has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed by Section 7 of the
Act within the meaning of Section 8(a) (1) thereof.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, it will be
recommended that Respondent cease and desist therefrom and take certain affirma-
tive action to effectuate the policies of the Act.
It has been found that the Respondent has refused to bargain collectively with
the Union as the exclusive representative of the employees in the appropriate units.
It will therefore be recommended that the Respondent, upon request, bargain col-
lectively with the Union as such representative, and in the event that an under-
standing is reached, embody such understanding in a signed agreement.
It will also be recommended that the Respondent cease and desist from refusing
to bargain collectively with the Union; and further, that it cease and desist from
interfering with, restraining, and coercing its employees in the exercise of organiza-
tional rights guaranteed in Section 7 of the Act, by refusing to bargain collectively,
by bargaining directly and individually with employees, and by making wage-rate
changes or fringe benefit changes without bargaining collectively therefor with the
Union, or by like or related action.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the following is made:
CONCLUSIONS OF LAW
1. Local 470, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, Independent, is a labor organization within the meaning
of the Act.
2 Witham Buick, Inc., is engaged in commerce within the meaning of the Act.
3. Shop personnel, but excluding salesmen, office and shop clericals, and super-
visors as defined in the Act, constitute a unit of the Respondent's employees appro-
22 By virtue of the certification the Union is the exclusive representative, for the pur-
poses of bargaining, of the employees in the certified unit The obligation to bargain
devolves upon the successor in title It is found that the Union is and has been since
October 19, 1961, the exclusive representative of the employees in the previously referred
to appropriate units for the purposes of collective bargaining with respect to rates of pay,
wages, hours of employment, and other terms and conditions of employment.
22 Cruse Motors, Inc, 105 NLRB 242.
672010-63-vol. 139-78
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
priate for the purposes of collective bargaining within the meaning of Section 9(b)
of the Act.
4. Salesmen, but excluding shop personnel, office and shop clericals, and super-
visors as defined in the Act, constitute a unit of the Respondent's employees appro-
priate for the purposes of collective bargaining within the meaning of Section 9(b)
of the Act.
5. Local 470, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, Independent, was on October 19, 1961, and at all times
since has been, the exclusive representative of all employees in the aforesaid appro-
priate units for the purposes of collective bargaining, within the meaning of the Act.
6. By refusing on February 14, 1962, and thereafter, to bargain collectively with
the above-named Union, the Respondent has engaged in unfair labor practices
within the meaning of Section 8(a) (5) of the Act.
7. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER 24
Upon the basis of the foregoing findings of fact and conclusions of law and
upon the entire record in this case, it is recommended 25 that Respondent, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local 470, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Independent, as
the exclusive representative of all the employees in the appropriate bargaining units
'herein set out:
I Shop personnel, but excluding salesmen, office and shop clericals, and
supervisors as defined in the Act.
2. Salesmen, but excluding shop personnel, office and shop clericals, and
supervisors as defined in the Act.
(b) Interfering with, restraining, or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act, by refusing to bargain collectively, by bargain-
ing directly and individually with employees, or by changing wage rates, insurance
or other fringe benefits without bargaining collectively therefor with the Union, or
by any like or related action.
2. Take the following affirmative action designed to effectuate the policies of
the Act:
(a) Upon request, bargain collectively with Local 470, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Independent, as
the exclusive representative of the employees within the appropriate units described
above with respect to rates of pay, wages, hours of employment and other condi-
tions of employment, and if an understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its premises in Wilmington, Delaware, copies of the notice attached
hereto marked "Appendix A." 26 Copies of said notice, to be furnished by the
Regional Director for the Fourth Region, shall, after being signed by Respondent's
representative, be posted by Respondent immediately upon receipt thereof and main-
tained by it for 60 consecutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not altered, defaced, or covered
by any other material.
24 In the event that this Recommended Order be adopted by the Board, the word "Order"
shall be deemed substituted for the words "Recommended Order "
^ And the word "ordered" shall be substituted for the word "recommended."
28 In the event that this Recommended Order be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "A Recommended Order of a Trial
Examiner" in the notice In the further event that the Board's Order be enforced by a
decree of a United States Court of Apepals, the words "A Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision
and Order."
TRUMBULL ASPHALT COMPANY OF DELAWARE 1221
(c) Notify the Regional Director for the Fourth Region, in writing, within 20
days from the date of this Order , what steps the Respondent has taken to comply
herewith.27
In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read : "Notify said Regional Director , in writing , within 10 days from
the date of this Order what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL bargain collectively, upon request , with Local 470, International
Brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers of America,
Independent , as the exclusive representative of all our employees in the bar-
gaining units described below with respect to rates of pay, wages , hours of em-
ployment, and other conditions of employment , and if an understanding is
reached, embody such understanding in a signed agreement.
The bargaining units are:
Shop personnel , but excluding salesmen , office and shop clericals, and
supervisors as defined in the Act.
Salesmen , but excluding shop personnel , office and shop clericals, and
supervisors as defined in the Act.
WE WILL NOT interfere with, restrain, or coerce our employees in the exercise
of their rights guaranteed in Section 7 of the Act by refusing to bargain col-
lectively with the above-named Union or by bargaining directly and individually
with employees , or by changing wage rates, insurance or fringe benefits, with-
out bargaining collectively therefor with the Union, or by any like or related
action.
WITHAM BUICK, INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 1700
Bankers Securities Building, Walnut and Juniper Streets, Philadelphia, Pennsylvania,
Telephone Number, Pennypacker 5-2612, if they have any questions concerning this
notice or compliance with its provisions.
Trumbull Asphalt Company of Delaware and Petroleum, Tire,
Automotive Service and Parts Drivers , Warehousemen, Serv-
ice Station Attendants, Helpers, Bulk Plant, Parking Lot and
Ramp Employees , Local Union No. 977, International Brother-
hood of Teamsters , Chauffeurs, Warehousemen & Helpers of
America. Case No. 18-CA-13929. November 23, 1962
DECISION AND ORDER
On March 23, 1962, Trial Examiner Arthur E. Reyman issued his
Intermediate Report herein, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices and recommend-
ing that it cease and desist therefrom and take certain affirmative
139 NLRB No. 97.