Allan W. Fleming, Inc.

National Labor Relations Board - Board Decisions

Oct 3, 1950

91 N.L.R.B. 612 (N.L.R.B. 1950)

In the Matter of ALLAN W. FLEMING, INC., EMPLOYER and INTER-
NATIONAL ASSOCIATION OF MACHINISTS, DISTRICT LODGE #727,
PETITIONER
Case No. 21-RC-1191
SUPPLEMENTAL DECISION AND ORDER AMENDING
DIRECTION OF. ELECTION
October 3, 1950
On July 5, 1950, the Board issued its Decision and Direction of
Election herein.' The Direction, as amended on August 3 and Sep-
tenlber 5, 1950, provided for an election to be held not later than 90
days from the date of the Direction in a unit comprising all employees
of the Employer (Allan W. Fleming, Inc., herein called Fleming) at
its establishment (a De Soto-Plymouth automobile sales and service
agency) in North Hollywood, California, excluding salesmen, office
and clerical employees, watchmen, professional employees, guards, and
supervisors as defined in the Act.
On August 23, 1950, the Regional Director for the Twenty-First
Region filed a motion for order to show cause why Charles Arthur
Gore, d/b/a C. "Bud" Gore, herein called Gore, should not be substi-
tuted for Fleming as the Employer in this proceeding. In support of
the motion, the Regional Director alleged that : On June 15, 1950, after
the hearing herein, but before the date of the Board's Decision and
Direction of Election, Fleming sold all its assets to Gore, who is now
the franchise holder from the Chrysler Company in place of Flem-
ing; 2 the business formerly conducted by Fleming is now being con-
ducted by Gore at the salve location ; three of the five employees in the
unit found appropriate by the Board have continued to work for. Gore
without any interruption in their employment, the other two having
1 00 NLRB No. 118.
2 In its original Decision, the Board noted that the record contained no evidence as to
the existence of a sale or franchise agreement between Fleming and the Chrysler Cor-
poration. However, it stated that it would take cognizance of the normal marketing
practice in the automobile industry of distributing new cars only through dealers who are
assigned to defined sales territories , and would presume, in the absence of any evidence
to the contrary, that Fleming's sales were made in accordance with some type of distributor
arrangement, either written or oral, with the Chrysler Corporation.
91 NLRB No. 108.
612
ALLAN W. FLEMING, INC. 613
been laid off; the only supervisor employed by Fleming over the men
in the unit has remained in the same capacity with Gore; and the
change in legal ownership which occurred has not materially changed
the nature of the unit or of the employees involved.
On August 29, 1950, Gore filed an objection to motion for order to
show cause, in which he requested the Board to deny the Regional
Director's motion, on the ground that Gore is not a successor to Flem-
ing and did not take over all its employees. He. alleged, in support
of his position, that :
(1) Gore purchased from Fleming only the visible assets of Flem-
ing, and did not purchase from it the franchise of the Chrysler Cor-
poration;
(2) Gore has obtained his own franchise from the Chrysler Cor-
poration;
(3) Gore did not take over all the employees of Fleming, and since
purchasing the assets and establishing the De Soto-Plymouth business
in his name, has employed three new employees who fall within the
unit described in the Board's Decision of July 5, 1950; and
(4) Fleming is a corporation which has not been dissolved, and
the stock of the corporation is still owned by Fleming, and therefore
the Board's Direction of July 5 still remains good as against Fleming.
Gore therefore contended that, in order for the Board to direct an
election among the employees at his establishment, it is necessary for
the Petitioner to file a new petition.
On August 31, 1950, the Regional Director requested the Board to
treat his motion for order to show. cause as a motion to amend
direction of election. As Gore, in his reply to the original motion,
in effect advanced his reasons in opposition to the proposed amend-
ment, we 3 deem it unnecessary to issue an order to show cause. We
have therefore considered the Regional Director's motion as a mo-
tion to amend the Direction of Election by substituting Gore for
Fleming as the Employer, and Gore's reply as a reply to the motion
to amend. For the reasons given below, the motion to amend is hereby
.granted.
We note that, in opposing the motion, Gore relies particularly on
the fact that he has not taken over Fleming's franchise or all of its
employees, and that he has hired some new employees. However, he
does not deny or otherwise controvert the allegations of the Regional
Director that he has purchased Fleming's assets (with the exception
of the franchise), and is continuing the same business, at the same
'Pursuant to Section 3 (b) of the National Labor Relations Act, the Board has dele-
gated its powers in connection with this case to a three-member panel [Chairman Herzog
and Members Reynolds and Styles].
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
location, with the same supervisor, and with some of the same em-
ployees. Furthermore, he does not contend that the nature of the-
unit has been changed as a result of the change in ownership or the.
hiring of new employees..
We have previously held that where, after a direction of election.
has been issued, the business involved is sold, but there is no change=
in any essential attribute of the employment relationship, the di-
rection is to be construed as providing for an election among the.
employees of the successor.4 Under the circumstances of this case,.
we are convinced that, except for the substitution of Gore for Flem-
ing, the relationship between the employees in the unit and their-
Employer has remained essentially unchanged. We therefore find,.
contrary to Gore's contention, that he is a successor to Fleming, and.
that, as such successor, a question affecting commerce exists concern-
ing the representation of Gore's- employees. We shall amend the.
Direction to reflect this successorship.5
ORDER
IT IS HEREBY ORDERED that the Direction of Election herein, as.
amended, be, and it hereby is, further amended by inserting before
the words "the Employer," the words "Charles Arthur Gore, d/b/a C.
`Bud' Gore, successor to," and by striking the words "but not later
than 90 days from the date of this Direction" and substituting there-
for the words "but not later than 120 days from the date of this
Direction."
4 Pacific Tankers, Inc., 84 NLRB 965; Alaska Salmon Industry, Inc., et al., 61 NLRB-
1508.
B Although Gore alleges that Fleming is still in existence as a corporate entity, we regard
this circumstance as immaterial in the absence of any allegation or showing that he i&
still an employer of the employees involved.