Eichorn Motors, Inc.

National Labor Relations Board - Administrative Judge Opinions

Mar 14, 2007

18-CA-018084 (N.L.R.B. Mar. 14, 2007)

JD–19–07
Grand Rapids, MN
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
EICHORN MOTORS, INC.
and Cases 18-CA-18084
18-CA-18142
UNITED AUTO WORKERS 18-CA-18174
INTERNATIONAL UNION 18-CA-18193
David M. Biggar, Esq.,
for the General Counsel.
R. Thomas Torgerson, Esq.,
(Hanft Fride, P.A.)
Duluth, Minnesota
for the Respondent.
DECISION
Statement of the Case
PAUL BOGAS, Administrative Law Judge. This case was tried in Grand Rapids,
Minnesota, on November 14, 2006. The United Auto Workers International Union (the Union)
filed the first charge on June 23, 2006, and an amended charge on August 10, 2006. The Union
filed further charges on August 11, September 27, and October 18, 2006, and amended the
most recent of those charges on November 6, 2006. The Director of Region 18 of the National
Labor Relations Board (the Board) issued a consolidated complaint on September 25, 2006,
and an amended consolidated complaint on October 16, 2006. At the start of trial, I granted the
General Counsel’s unopposed motion to consolidate an additional case, and further amend the
consolidated complaint. The consolidated complaint, as amended, (the complaint), alleges that
Eichorn Motors, Inc. (the Respondent or Eichorn), a successor employer, violated Section
8(a)(5) and (1) of the Act by: failing and refusing to recognize and bargain with the Union as the
exclusive bargaining representative of unit employees; bypassing the Union and dealing directly
with unit employees; and failing to execute and abide by a labor contract that it expressly
assumed in the purchase agreement with the predecessor employer. The complaint also
alleges that two of the Respondent’s officials repeatedly interfered with unit employees’ Section
7 rights in violation Section 8(a)(1) of the Act by: threatening employees with adverse actions for
union activities or support; promising improved terms and conditions of employment if
employees rejected the Union as their bargaining representative; interrogating employees about
union activities; creating the impression that union activities were under surveillance; and
ordering and requesting that employees dissuade other employees from supporting the Union.
The Respondent concedes that it is a successor to an employer that had recognized the Union,
but denies committing any violation of the Act.
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On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the parties, I make the following findings of fact and
conclusions of law.
Findings of Fact
I. Jurisdiction
The Respondent, a corporation, operates a retail automobile dealership and has
engaged in the sale and service of new and used automobiles at its facility in Grand Rapids,
Michigan. Based on its operations since May 1, 2006, the Respondent, in conducting its
business operations will annually purchase and receive at that facility goods and materials
valued in excess of $50,000 directly from points outside the State of Minnesota, and will
annually derive gross revenue in excess of $500,000 from the sale of goods and services. The
Respondent admits, and I find, that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. The Respondent Purchases Assets of Swanson Motors
Since May 1, 2006, the Respondent has operated a dealership that sells and services
new and used automobiles. It is an admitted successor employer to Swanson Motors
(Swanson), an automobile dealership that previously operated the same facility. Swanson sold
its assets to the Respondent through a purchase agreement that was executed by the two
entities on February 17, 2006 – at a time when Swanson was in financial trouble and close to
bankruptcy. The testimony suggests that, prior to the sale, the Union had been the recognized
collective bargaining representative of mechanics at Swanson for at least 18 years.1 The most
recent labor contract between Swanson and the Union took effect on July 1, 2004, and has an
expiration date of July 1, 2007. The Respondent concedes that since it began operations at the
facility formerly operated by Swanson, the Union has been the exclusive collective bargaining
representative of the company’s employees in the bargaining unit.
Justin Eichorn (J. Eichorn) is the Respondent’s president and majority stockholder,
Mitchell Eichorn (M. Eichorn) is the Respondent’s vice-president,2 and Michael Coombe is the
Respondent’s General Manager and minority stockholder. The individuals who took part in the
discussions that led to the Respondent’s purchase of Swanson’s assets were J. Eichorn and M.
Eichorn for the Respondent, and George Michael “Mike” Tarbuck (Swanson’s general manager,
and one of its owners) (M. Tarbuck) and Rob Tarbuck (another one of Swanson’s owners) (R.
Tarbuck) for Swanson. During those discussions, the parties broached the subject of the union
presence at Swanson. M. Tarbuck told the Eichorns that the union contract would not apply

1 The most recent labor contract between Swanson and the Union states that the bargaining
unit “include[s] all automobile mechanics, partsmen, washers, polishers and new/used car prep,
but shall not include shop forem[e]n, superintendents, office help and salesmen.” General
Counsel’s Exhibit (GC Exh.) 4, Article 1. The record indicates that automobile mechanics were
the only active employees who fell within the unit description at the time the Respondent
purchased Swanson’s assets. The Respondent’s automobile mechanics are also referred to in
the record as “auto technicians” and “technicians.”
2 Mitchell Eichorn is also the father of Justin Eichorn.
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after the sale was completed and that the Respondent “would not have to deal with the Union at
all.” The Eichorns never told the Tarbucks that they wanted to assume the union contract, and
the Tarbucks never asked that the Eichorns do so. Despite the fact that the Union was notified
in advance of the potential sale, it did not ask Swanson to require that any prospective buyers
agree to assume the Swanson labor contract. J. Eichorn, M. Eichorn, and M. Tarbuck all
testified that at the time they executed the purchase of sale agreement they intended, and
believed, that the labor contract between the Union and Swanson would no longer apply once
the Respondent began operating the facility.3 Before the Respondent took control of the facility,
each of those three individuals told Coombe that there would be no union at the facility after the
Respondent took over operations. M. Tarbuck also informed unit employees about the
impending sale, and told them that there would not be a union once the Respondent began
operating the facility.
Before the Respondent initiated its operations, Coombe met with Swanson’s mechanics
about the possibility of working for the Respondent. During those meetings, Coombe told the
mechanics that the Respondent was offering its own terms of employment, not assuming the
labor contract between Swanson and the Union. The Respondent offered the mechanics the
same base pay as was currently provided under the labor contract, but did not offer a number of
that contract’s other terms. In particular, the Respondent: did not offer scheduled raises or a
pension plan; offered only five holidays (the labor contract lists nine holidays); offered less
vacation; offered the Respondent’s own health insurance plan as opposed to the one set forth in
the labor contract; and declined to deduct union dues. Coombe testified that the initial terms he
offered the mechanics were based on “what was going on in the industry.” As a result of the
meetings between Coombe and the Swanson employees, all three of the Swanson mechanics
-- Robert Anderson, David Cogger, and James Ossefoort – accepted employment with the
Respondent. Anderson had worked for Swanson for about 20 years, Cogger for about 6 years,
and Ossefoort for over 8 years. Consistent with Coombe’s statements to the mechanics prior to
hiring them, the Respondent never applied the terms of the Swanson labor contract.
B. Charge Filings and Negotiations
The first communication that the Union made to the Respondent was a letter dated June
1, 2006 – a month after the Respondent began operating the facility acquired from Swanson.
The letter was addressed to “Mr. Eichorn, Owner” of “Eichorn Motors,” from George Klingfus,
international representative with the Union. The body of the letter stated:
Congratulations on your purchase of Swanson Motors. I am sure you are aware that this
was a Union Shop and that we still represent the mechanics at your dealership.

We hope you will honor the existing contract or, if you are looking to negotiate a new
contract, please contact me with available dates to negotiate by June 12, 2006.

If you have any questions, please contact me at my office: [Phone Number].
Coombe received this letter for the Respondent, but did not respond to it because, in his view,
he had no obligation to deal with the Union and did not intend to do so.

3 M. Tarbuck was the sellers’ primary spokesperson during the negotiations regarding the
purchase of Swanson. R. Tarbuck, the other participant on behalf of Swanson, was not called to
testify.
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By June 23, 2006, the Union had not received any reply to Klingfus’ June 1 letter.
Klingfus reacted to this silence by filing an unfair labor practice charge, dated June 23, in which
he alleged that the “Employer refuses to recognize and bargain with the United Auto Workers.”
After the charge was filed, an investigator from the Board visited the Respondent and told
Coombe that the Respondent had an obligation to bargain with the Union. The Board
investigator also obtained a copy of the purchase agreement between Swanson and the
Respondent. That purchase agreement was approximately 50 pages long – 29 contract pages
plus 21 pages of “schedules.” One of those schedules was a list of “Assumed Contracts.” See
General Counsel’s Exhibit (GC Exh.) 3, Schedule 18(c). Among the twelve contracts listed as
being assumed by the Respondent was included the “Agreement between Swanson Motors,
Inc. and International Union, United Automobile, Aerospace & Agricultural Implement Workers
of America, UAW and its Local 349.”
The inclusion of the Swanson labor contract on the list of contracts being assumed by
the Respondent was contrary to the understanding of both the seller and the buyer regarding
the terms of the purchase agreement. J. Eichorn, M. Eichorn, and M. Tarbuck testified that they
had not intended for the Respondent to assume Swanson’s labor contract, had not directed
anyone to include language in the agreement or its schedules providing for the Respondent to
assume the labor contract, did not notice the language providing for assumption of the labor
contract prior to signing the purchase agreement, and had not believed that the purchase
agreement provided for assumption of the labor contract at the time they signed it. Indeed, M.
Tarbuck testified that it was not until approximately 8 months after that purchase agreement was
executed that he became aware that one of the schedules stated the Respondent would
assume the labor contract. Neither M. Tarbuck, nor J. Eichorn, nor M. Eichorn, offered a
specific explanation for the purchase agreement language providing for assumption of the
Swanson labor contract, although M. Eichorn characterized it as “more of a clerical error than an
intention by the buyer and seller.” According to both M. Eichorn and M. Tarbuck, during the
period immediately before the purchase agreement was signed there was a flurry of activity with
many documents being sent back and forth. The parties did not call as witnesses the person or
persons responsible for actually drafting the purchase agreement.
After the Board investigator told Coombe that the Union had a legal obligation to bargain
with the Union, the Respondent and the Union met on August 10 for the first time. Present for
the Union were Klingfus, Tim Thompson (president of the union local), and unit employees
Anderson and Cogger. The Respondent was represented by Coombe and David Brown (the
Respondent’s parts and service director). At the meeting, Klingfus presented Coombe and
Brown with the Swanson labor contract and asked them to sign it. Klingfus’ objective was to
get the Respondent to agree to the Swanson labor contract, or a similar one. The Respondent’s
officials declined to sign the Swanson labor contract and neither the Union nor the Respondent
made an alternative contract proposal.4 On August 11, Klingfus signed and filed an amendment

4 I do not credit Coombe’s testimony that, during the August 10 meeting, “Klingfus threw the
contract at me,” and called Coombe “stupid.” Transcript (Tr.) 80-81, 87. Elsewhere in his
testimony, Coombe conceded that Klingfus did not throw the contract at him, but rather onto the
table at which the parties had met to negotiate. Tr. 81. In addition, the Respondent called
Brown, in part to corroborate Coombe’s account of the August 10 meeting, but Brown did not
corroborate that Klingfus used the word “stupid.” Tr. 92. While testifying, Coombe contradicted
himself several times, and I concluded that these contradictions were not innocent lapses, but
reflected an effort by Coombe to slant his account in order to portray his own actions in a
favorable light, and those of the Union unfavorably. See, e.g., Tr. 38 and 40 (claims that he did
not respond to Klingfus’ June 1 letter because he did not interpret it as a request to negotiate,
Continued
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to the original unfair labor practice charge in which he added an allegation that the Respondent
had violated the Act by repudiating the labor contract and unilaterally changing the unit
employees’ terms and conditions of employment. That same day, Klingfus also filed a new
unfair labor practices charge alleging that, in various ways, the Respondent had interfered with,
coerced, and restrained employees in the exercise of their Section 7 rights.
Coombe, in an August 21 letter to Klingfus, stated that the Respondent was “prepared to
meet and engage in good faith negotiations with the union concerning the terms and conditions
of employment for” employees within the unit definition. Coombe’s letter asked Klingfus to
“provide some alternative available dates for meeting.” In a letter dated 2 days later, the
Respondent’s attorney, R. Thomas Torgerson, informed the Board that the Respondent
recognized the Union as the exclusive bargaining representative of unit employees, was
prepared to negotiate, and had invited the Union to negotiate. The parties subsequently met to
negotiate on three dates – September 12, October 2, and October 17, 2006 -- but did not reach
agreement regarding a labor contract. Unit employee Ossefoort attended the September
meeting, and testified that at that meeting the two sides “did get some things resolved,”
including “the noneconomical stuff.”
C. Coombe’s and Brown’s Statements
to Employees Regarding the Union
During the same period that the contract negotiations described above were taking
place, Coombe and Brown repeatedly discussed union and union-related matters with individual
mechanics. Brown is the direct supervisor of the mechanics, and Brown, in turn, reports to
Coombe. During the first few days of August 2006, before the Respondent and the Union met
for the first time, Coombe approached Ossefoort in the mechanics’ shop and said that he did not
want the Union at the Respondent. Coombe said that he “wanted [the mechanics] to drop the
union” and offered to “sign” “a piece of paper or something that would guarantee . . . a cost-of-
living raise.” Later, during the first week of August, Coombe broached the subject of the Union
with Ossefoort again, and this time asked if Ossefoort “would talk to” Anderson and Cogger and
“see if [he] could persuade them to drop the union.” Coombe reiterated his offer to sign
something that guaranteed employees a cost-of-living raise. Ossefoort went on vacation shortly
thereafter, and during his vacation the first meeting between the Respondent and the Union
took place. After that vacation, Coombe approached Ossefoort in the shop and asked if he had
talked to Anderson and Cogger yet. Ossefoort said that he had not done so, and Coombe
renewed his request that Ossefoort talk to them about abandoning the Union. Coombe opined
that Cogger might be easier to convince than Anderson, and suggested that Ossefoort
approach Cogger first. He said that Anderson was the “ramrod” behind the Union. At the end of
this conversation, Coombe said that if Ossefoort told anybody what they had talked about he
would “have to kill” him, although it does not appear that any of the employees believed that
_________________________
then admits that he did not respond because he had no intention of bargaining with the Union,
and then claims that he was motivated by both reasons); Tr. 35-36 and Tr. 40-41 (inconsistent
explanations as to what caused him to write the August 21 letter to Klingfus). Based on
Coombe’s demeanor and testimony, and the record as a whole, I conclude that he was less
than fully credible regarding disputed matters.
I also considered Klingfus to be a less than fully credible witness. Like Coombe, he
appeared disposed to slant his account to favor the side he was associated with. For example,
he testified that he received a letter from the Respondent stating that it would not recognize the
Union, but the letter, which was received as an exhibit, actually stated that the Respondent was
willing to recognize and bargain. Compare Tr. 26 and GC Exh. 6.
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Coombe seriously meant that he would resort to violence. After this, Ossefoort talked to
Anderson and Cogger about abandoning the Union, but both rejected the idea. Coombe
subsequently approached Ossefoort yet again and asked whether he had talked to Anderson
and Cogger. Ossefoort reported to Coombe that both Anderson and Cogger “wanted to stay
with the Union.”
Like Coombe, Brown pressured Ossefoort to discourage the other mechanics from
supporting the Union. In early August, Brown approached Ossefoort in the mechanics’ shop
and said that the mechanics could increase their earnings if they would “give up the contract,
give up the union.” Brown stated that under such circumstances the employees could have
more flexibility regarding their work schedules because the Respondent would not have to be
concerned about paying overtime after 8 hours. Brown told Ossefoort that when he worked at a
non-union automobile dealership in Arizona, the pay scale was similar to the Respondent’s, but
employees were able to make $80,000 to $160,000 per year, because the employer could
schedule employees for more than 8 hours per day without paying overtime and, as a result, the
employees were able to “turn a lot of hours.” 5 Brown testified that he hoped that this

5 Brown’s claim that mechanics with a similar pay scale had made up to $160,000 a year in
a nonunion shop because that employer had the flexibility to schedule the mechanics’ hours
without concern about paying overtime under a Union contract is extremely dubious. The wage
rate for mechanics under the Swanson labor contract ranged from $9.84 per hour to $23.81 per
hour, and the Respondent was paying the same base wage rate as Swanson had. A mechanic
paid at the highest rate of $23.81 per hour (Master Technician/High Incentive Rate), even for
what would normally be considered overtime hours, would have to work an average of about
129 hours per week – i.e., more than 24 hours a day assuming a 5-day work week, or 18 hours
a day assuming the employee worked 7 days a week -- to earn $160,000 in a year. Even
assuming that Brown was not foreclosing the possibility that an overtime rate would be paid for
some hours, it is hard to believe that the $23.81 hourly rate would ever translate into annual
earnings of $160,000. In any case, Brown’s suggestion that the union contract was the reason
the mechanics were not working more hours is rebutted by the simple fact that the Respondent
had already disavowed the contract and was not adhering to it.
To the extent that there were discrepancies between Ossefoort’s account and those of
Brown or Coombe, I consider Ossefoort the more reliable witness based on the witnesses’
respective demeanors, testimonies, and the record as a whole. Ossefoort was not shown to be
favorably disposed towards the Union. Indeed, it is undisputed that, at the Respondent’s urging,
Ossefoort talked to Cogger and Anderson about abandoning the Union, and reported back to
Coombe about that conversation. My credibility findings with respect to Ossefoort are made
independently of the fact that he was still working for the Respondent, and under Brown’s and
Coombe’s supervision, at the time he testified. I nevertheless note that these findings are
consistent with the Board's view that the testimony of a current employee that is adverse to his
employer is "given at considerable risk of economic reprisal, including loss of employment ...
and for this reason not likely to be false." Shop-Rite Supermarket, 231 NLRB 500, 505 fn. 22
(1977); see also Jewish Home for the Elderly of Fairfield County, 343 NLRB 1069, fn2. (2004),
174 Fed.Appx. 631 (2d Cir. 2006), and Flexsteel Industries, 316 NLRB 745 (1995), enfd. 83
F.3d 419 (5th Cir. 1996) (Table). Based on Brown’s demeanor and testimony, I considered him,
like Coombe, see supra footnote 4, to be an unreliable witness regarding disputed matters.
During cross-examination, Brown showed a knee-jerk tendency to resist or deny things asserted
by counsel for the General Counsel, even regarding facts that Brown essentially admitted during
other portions of his testimony. See, e.g., Tr. 102 (Brown first denies that he felt the Union was
unfairly singling out the Respondent from among similar employers, but then says “we were just
wondering why they didn’t care about taking care of” other dealerships’ mechanics.).
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conversation would lead Ossefoort to convince other mechanics to abandon the Union.
Ossefoort was uncomfortable about the Respondent’s efforts to use him as a go-between and
told Brown that “rather than you guys coming to me and asking me to go talk to those guys, why
don’t you have a meeting and explain to . . . the other technicians exactly what you . . . told
me.” Brown replied that he could not do that. Instead, on about September 1, he approached
Ossefoort in the mechanics’ shop again, and asked Ossefoort to try to persuade one of the
other mechanics to abandon the Union.
Coombe and Brown also pressed the other mechanics about the Union. On August 11,
the day following the first meeting between the Respondent and the Union, Brown spoke to
Cogger and Anderson during the morning in the mechanics’ work area. Brown asked whether
they wanted the Union to represent them. Both Cogger and Anderson responded that they
desired representation by the Union. Brown asked what they thought the Union could do for
them that the Respondent could not. Anderson answered by making reference to benefits that
were in the Swanson labor contract, but not being offered by the Respondent. Brown told
Cogger and Anderson that they should give the Respondent a chance to show what it could do
for them without a union. Brown said: “I’ve worked in business for 30 years and I know how to
make money. Give us a chance to show you how we can make you guys profitable because we
want everybody to be able to make a good income so they can enjoy their life, their livelihood.”
Brown said that if it did not work out, the mechanics could always go back to the Union. He
asked the two mechanics “what it would take not to go forward with the Union.” Cogger
responded that his father had worked in a unionized facility for 30 years, and that he thought it
was good for “job security, raises, insurance . . . . “[s]tuff like that.” Brown did not pursue the
matter further at that time because he did not believe that the Respondent could offer anything
to make the mechanics change their minds. Also around this time, Coombe approached
Cogger during a work break and asked “Off the record why do you want the Union here?”
Cogger responded that it was good for “job security” and “economic issues.” Coombe then
asked, “Don’t you think I’m not that white?”6
Later that same day, when Coombe handed Anderson’s paycheck to him, Coombe
stated that it would be the last one because Anderson was about to be fired. Then Coombe
said he was “kidding” and walked away. Anderson knew Coombe only in his role as general
manager of the facility, not as a friend or casual acquaintance. On another occasion, probably
in September, Coombe came to the mechanics’ shop and told Ossefoort that he “might have to
fire all the mechanics and just hire back those that did not want the Union.”7

6 Cogger stated that he could “only assume” what Coombe meant by this rather obscure
remark. Coombe himself did not testify about its meaning.
7 I credit Ossefoort’s and Anderson’s testimonies that Coombe made these statements over
Coombe’s denials. For reasons already discussed, I considered Ossefoort a very credible
witness, and a considerably more reliable one than Coombe. Based on Anderson’s demeanor
and testimony, I considered him quite credible. Although he clearly supported the Union, he did
not resist giving testimony that was favorable to the Respondent. Tr. 47 (testifies that during
conversation with Brown he did not feel threatened, and that when he told Brown the
conversation was improper, Brown ended the conversation). Moreover, Anderson’s testimony
that Coombe said he was going to fire him is lent credence by the fact that, during the same
general time period, Coombe made a similar threat to Ossefoort. See also Shop Rite
Supermarket, supra (testimony of current employee that is adverse to his or her employer is
likely to be particularly reliable).
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In September and October 2006, meetings between the Union and the Respondent
continued, as did Coombe’s efforts to persuade employees to reject the Union. On September
13, the day following a negotiating session, Coombe called Ossefoort to his office. He asked
Ossefoort what it would take to convince the mechanics to drop the Union. Coombe asked if “a
couple of weeks of vacation would do it.” Ossefoort asked whether the Respondent would
provide insurance and a 401(k) plan, and Coombe responded that a 401(k) plan was a
possibility. Coombe also stated that the Respondent would provide back pay and cost-of-living
raises. Ossefoort told the other mechanics what Coombe had said only “to a point,” because he
was becoming tired of being used as a “middleman.”
Another bargaining session was held on October 2, 2006. Around that date, Coombe
called employee Donald Conrad to his office. Conrad is not a mechanic, but a “yard man” who
works in the sales department. His duties include processing cars that arrive at the facility,
cleaning the showroom, making coffee, and filling-in for the car washer. Conrad testified that
his position had never been considered a “union job” and that he was not a member of the
Union. After Coombe called Conrad into his office in early October, Coombe asked whether
Conrad had ever been approached by, or asked to join, the Union. Conrad responded, “No, I
haven’t because I was hired under sales.” Coombe stated that it would “probably be” in
Conrad’s “best interest” not to “join the union.” A few days later, Coombe called Conrad to his
office again and, after some small talk, asked whether Conrad “knew that [he] was supposed to
be part of the Union.” Conrad responded, “No, because I was hired into sales and nobody has
ever approached me about the Union.” Some weeks prior to the hearing in this matter, and
approximately 3 days after Conrad received a subpoena to testify, Coombe approached Conrad
at the facility and asked if Conrad had been subpoenaed by the Board. Conrad answered “yes.”
Then Coombe asked if Conrad knew of anyone else that had been subpoenaed, and Conrad
answered that he did not know of others. On another day, approximately a week or two prior to
the hearing, Coombe called Conrad into his office “a few” times to discuss issues relating to the
Union. Coombe told Conrad that it was in his best interests not to be in the Union, but Coombe
did not explain the basis for this view. Coombe also mentioned to Conrad that “the corporate
lawyers were going to come on Tuesday to talk to us,” but that “they didn’t need to talk to
[Conrad] because [Coombe] already knew which side [Conrad] was on.” Conrad testified that
he had not publicly expressed a preference one way or the other about inclusion in the
bargaining unit.
D. The Complaint Allegations
The complaint alleges that the Respondent violated Section 8(a)(1) of the Act, by
interfering with, restraining, and coercing employees in the exercise of their rights under Section
7 of the Act: in about late July or early August 2006, when Coombe threatened that he would
discharge employees because of their support for the Union; in early August 2006, when
Coombe told an employee that another employee was the ramrod behind the Union, and
thereby created the impression of surveillance; in early August 2006, when Coombe promised
employees cost-of-living raises if they rejected the Union as their bargaining representative; in
early August 2006, when Coombe promised an employee a raise if the employees rejected the
Union as their bargaining representative; in early August 2006, when Coombe ordered an
employee to persuade other employees to reject the Union as their bargaining representative; in
August 2006, when, on two occasions, Coombe asked an employee to dissuade other
employees from supporting the Union; on about August 12, 2006, when Brown asked that
employees give the Respondent a chance to show what it could do for them, thereby impliedly
promising the employees improved terms and conditions of employment; on about August 12,
2006, when Coombe threatened an employee that the Respondent would discharge employees
because of their union activity; on about August 12 or 13, 2006, when Brown promised an
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employee that schedules would be more flexible if Respondent did not have to follow the Union
contract; on about August 12 or 13, 2006, when Brown asked an employee to dissuade other
employees from supporting the Union; on about August 12 or 13, 2006, when Brown promised
that employees could make more money without the Union; in July 2006, when Coombe
interrogated an employee about the employees’ activity and support on behalf of the Union; on
about September 12, 2006, when Coombe interrogated an employee about what it would take
for employees to reject the Union as their bargaining representative; on about September 12,
2006, when Coombe promised an employee that vacation time, a cost-of-living raise every year
and other possible benefits would be provided to employees if they rejected the Union as their
bargaining representative; in early October 2006, when Coombe interrogated an employee
about the employee’s activity and support on behalf of the Union; on about October 30, 2006,
when Coombe gave an employee the impression that employees’ union activities were under
surveillance by stating that he knew which side the employee was on; and in early November
2006, when Coombe interrogated an employee about the employee’s union activity and the
union activity of other employees.8
The complaint further alleges that the Respondent has been failing and refusing to
bargain collectively and in good faith with the Union in violation of Section 8(a)(5) and (1) and
8(d) of the Act: since about May 1, 2006, by failing to recognize and bargain with the Union as
the exclusive collective bargaining representative of unit employees, notwithstanding the
bargaining obligations resulting from its status as a successor employer; since about May 1,
2006, by failing and refusing to execute the labor contract that it expressly assumed in its
February 17, 2006, purchase agreement; since about May 1, 2006, by failing to apply and abide
by certain provisions of the collective bargaining agreement; and on about September 12, 2006,
when Coombe bypassed the Union and dealt directly with unit employees by asking an
employee what it would take for employees to abandon the Union, inviting suggestions from the
employee and promising the employee terms that were different from those that had been
offered to the Union at the bargaining table.
III. Analysis and Discussion
A. Alleged Violations of Section 8(a)(1)
1. Threats
The General Counsel argues that Coombe made unlawful threats on two occasions –
once to Anderson on August 11, 2006, and once to Ossefoort, probably in September 2006.
The test to determine if a statement violates Section 8(a)(1) is whether “under all the
circumstances” the remark “reasonably tends to restrain, coerce, or interfere with the
employee's rights guaranteed under the Act.” GM Electrics, 323 NLRB 125, 127 (1997). “It is
well established that this test does not depend on motive or the successful effect of the
coercion.” Id.
On August 11, Coombe handed Anderson’s paycheck to him, and told Anderson that it
would be the last one because Coombe was going to fire him. This occurred one day after

8 In its posthearing brief, the General Counsel moved that four other alleged violations of
Section 8(a)(1) – set forth in subparagraphs 6(a), (c), (s), and (v) of the complaint – be
withdrawn. Brief of General Counsel at 5, n. 5. The General Counsel stated that it had not
presented evidence to support those allegations. I hereby grant the General Counsel’s motion
to withdraw those allegations from the complaint.
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Coombe and Anderson participated in the first meeting between the Respondent and the Union.
Moreover, it occurred later on the same day that Brown had unsuccessfully attempted to
persuade Anderson to stop supporting the Union. Around the same time, Coombe identified
Anderson to another employee as the “ramrod” behind the Union.
The Board has long held that an employer violates Section 8(a)(1) of the Act when it
threatens to discharge employees who are union activists. California Gas Transport, Inc., 347
NLRB No. 118, slip op. at 37 (2006); Desert Toyota, 346 NLRB No. 3, slip op. at 5 (2005);
Mercedes Benz of Orland Park, 333 NLRB 1017 (2001), enfd. 309 F.3d 452 (7th Cir. 2002);
Burlington Industries, Inc., 257 NLRB 712, 725 (1981), enf. granted in part, denied in part, on
other grounds, 680 F.2d 974 (4th Cir. 1982). Under the circumstances present here, I conclude
that Coombe’s statement threatening discharge would reasonably tend to coerce Anderson in
the exercise of his Section 7 rights. Coombe was the individual who hired the mechanics, and
it would be fair for Anderson to assume that Coombe was also in a position to make good on his
threat to fire him. The fact that Coombe made the statement after giving Anderson a paycheck,
underscored the implication that Anderson’s livelihood rested in Coombe’s hands. In addition, it
would be reasonable for Anderson to conclude that his union support was the reason that
Coombe made the threat. The threat occurred against the backdrop of Coombe’s knowledge
that Anderson supported the Union. In this connection, the timing of the threat is revealing – it
came only a day after Anderson and Coombe participated in the first meeting between the
Union and the Respondent, and also shortly after Brown unsuccessfully tried to discourage
Anderson from supporting the Union. Moreover, the record reveals no basis upon which
Anderson could conclude that the threat of discharge was based on his performance or some
other basis unrelated to the Union. Anderson had worked for Swanson for over 20 years, the
Respondent presented no evidence that he had performance problems, and Coombe did not
link the threat to any such problems. In reaching my conclusion that Coombe’s statement was
unlawful, I considered the fact that Coombe told Anderson that he was “joking.” In my view this
reduces the statement’s coercive character only minimally, if at all. Coombe was not a friend of
Anderson’s, and the two were not shown to have a history of good-natured ribbing. Regardless
of Coombe’s intentions – and I view them as bullying rather than humorous – a reasonable
employee in Anderson’s position would not see the threat to his livelihood as a laughing matter.
The second alleged threat is based on Coombe’s statement to Ossefoort, probably
made sometime in September 2006,9 that he “might have to fire all the mechanics and just hire
back those that did not want the Union.” Coombe’s explicit threat to end the employment of
mechanics because they supported the Union is a clear violation of Section 8(a)(1). The
argument for finding a violation is particularly strong here in light of the fact that Coombe had
been soliciting Ossefoort to persuade the other mechanics to abandon the Union. Moreover,
Ossefoort’s own proclivities regarding the presence of the Union at the Respondent were not
shown by the record, nor was it shown that Ossefoort had communicated his sentiments to the
Respondent.

9 The General Counsel states that this allegation is set forth in paragraph 6(b) of the
complaint, which places the threat as occurring “about the end of July or beginning of August
2006, the exact date being unknown.” Although Ossefoort testified that the statement was
probably made in September, the matter was fully litigated. Counsel for the Respondent cross-
examined Ossefoort about the allegation, Tr. 59, and elicited testimony from Coombe regarding
it, Tr. 83-84. The Respondent makes no argument that the discrepancy in dates led to
confusion. A discrepancy in dates, without more, is insufficient to find that a respondent has
been prejudiced. Parts Depot, Inc., 332 NLRB 733, 734 fn. 6 (2000).
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For the reasons discussed above, I conclude that the Respondent unlawfully coerced
employees in violation of Section 8(a)(1) by threatening to discharge employees because they
supported the Union.
2. Promises
An employer violates Section 8(a)(1) by promising to grant employees new or improved
terms or conditions of employment terms in order to induce them to reject union representation.
Onyx Waste Services, 343 NLRB 23, 27 (2004); Palagonia Bakery Co., 339 NLRB 515, 524
(2003); see also Hospital Shared Services, 330 NLRB 317 (1999) (employer violates Section
8(a)(1) when it solicits, and promises to remedy employee grievances as part of an effort to
discourage union activity).
The complaint alleges six separate instances of unlawful promises, most of them
involving statements made to Ossefoort. On two occasions during the first week of August,
Coombe approached Ossefoort at his work station and stated that he would sign something
guaranteeing the mechanics a cost-of-living raise if they would drop the Union. In the second of
those instances, Coombe also asked Ossefoort to talk with the other mechanics about
abandoning the Union. Another supervisor, Brown, also approached Ossefoort in early August.
Brown told Ossefoort that the mechanics could have higher earnings and more flexible hours if
they gave up the contract and the Union. Brown stated that a nonunion dealership where he
worked previously had been able to schedule employees for more hours (resulting in greater
compensation) because, in the absence of a union and/or a union contract, that employer had
the flexibility to schedule employees for additional hours without having to pay an overtime rate.
On the morning following the first bargaining session, Brown attempted to persuade Anderson
and Cogger to abandon the Union. He asked the two mechanics what they thought the Union
could do for them, said that he wanted employees to make a good income so they could enjoy
their life and livelihood, and asked Anderson and Cogger to give the Respondent a chance to
show what it could do for employees without a union. On September 13, the day after a
negotiating session, Coombe approached Ossefoort about the Union again, and asked what it
would take to convince the mechanics to drop the Union. Coombe asked if “a couple of weeks
vacation would do it,” and stated that the Respondent was willing to provide cost-of-living raises,
back pay, and, possibly, a 401(k) plan.
Coombe, in his remarks to Ossefoort during the first week of August, promised to grant
employees a raise in exchange for their withdrawing support from the Union. On September 13,
Coombe again promised that if employees dropped the Union he would grant them a raise, and
this time also offered back pay and the possibility of improved benefits. These statements by
Coombe interfered with and coerced employees in the exercise of their Section 7 rights and
were clear violations of Section 8(a)(1). California Gas Transport, Inc., 347 NLRB No. 118, slip
op. at 5 (2006) (employer violates the Act by promising employees improved wages in order to
dissuade them from supporting the union); Wehr Constructors, 315 NLRB 867 (1994) (an
employer violates the Act by soliciting employees to abandon the Union in exchange for
improved benefits), enf. granted in part, denied in part 159 F.3d 946 (1998). It is not perfectly
clear that the other statements alleged to constitute unlawful promises rise to the level of
violations, but I need not reach those issues since such additional findings would be cumulative
and would not affect the remedy. See Wisconsin Porcelain Company, Inc., 349 NLRB No. 17,
slip op. at 3-4, fn. 11 (2007); Daimler-Chrysler Corp., 344 NLRB No. 154, slip op. at 1 (2005).
For the reasons discussed above, I find that the Respondent violated Section 8(a)(1) by
unlawfully promising that it would grant unit employees improved terms and/or conditions of
employment if they abandoned the Union as their bargaining representative.
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3. Interrogations
An interrogation is unlawful if, in light of the totality of the circumstances, it reasonably
tends to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights.
Postal Service, 345 NLRB No. 100, slip op. at 14 (2005); Millard Refrigerated Services, Inc.¸345
NLRB No. 95, slip op. at 4-5 (2005); Mathews Readymix, Inc., 324 NLRB 1005, 1007 (1997),
enfd. in part 165 F.3d 74 (D.C. Cir. 1999); Emery Worldwide, 309 NLRB 185, 186 (1992).
Relevant factors include, whether the interrogated employee was an open or active union
supporter, the background and timing of the interrogation, the nature of the information sought,
the identity of the questioner, the place and method of the interrogation, whether a valid purpose
for the interrogation was communicated to the employee, and whether the employee was given
assurances against reprisal. Millard Refrigerated, supra; Stoody Co., 320 NLRB 18, 18-19
(1995).
The General Counsel alleges that the Respondent unlawfully interrogated employees on
four occasions. The first such occasion was when Coombe approached Cogger outside the
facility around the time of the August 10 meeting and asked him “Off the record, why do you
want the Union here?” Cogger, who was on a break, said that he was concerned with job
security and economic issues. Coombe responded by asking, “Don’t you think I’m not that
white?” Under all the circumstances present here I conclude that this constituted an unlawful
interrogation. Coombe was the general manager of the entire facility, and the person to whom
Cogger’s direct supervisor reported. Coombe was also the company official who had
interviewed and hired the mechanics, and it would be reasonable for mechanics to assume that
Coombe also had authority to fire them. Although Cogger had accompanied the Union
negotiator to the first meeting with the Respondent, the record does not show that, prior to the
time of the questioning, Cogger had publicly expressed a view regarding the merits of continued
union representation. Indeed, Coombe himself had identified Cogger as someone who might be
persuaded to abandon the Union. Prior to asking about Cogger’s view on the Union, Coombe
did not reassure Cogger that the questioning had an innocent purpose or that no negative
consequences would result regardless of Cogger’s answer. To the contrary, the questioning
took on an edge of hostility when, after Cogger responded that he supported the Union because
of job security and economic concerns, Coombe asked “Don’t you think I’m not that white?”
Although the precise meaning of this question is not clear, it does, in my view, communicate that
Coombe took offense at the suggestion that Cogger did not trust him to treat employees fairly in
the absence of a union. Finally, I note that the questioning took place in the context of other
coercive conduct – specifically, close in time to Coombe’s threat to discharge a mechanic who
Coombe had singled out as ‘the ramrod” behind the Union and within a month or so of
Coombe’s subsequent threat to eliminate all the mechanics who wanted to be in the Union. See
Millard Refrigerated Services, 345 NLRB No. 95, slip op. at 5 (questioning unlawful where it
occurred in a context that included other coercive conduct). Although neither threat was made
directly to Cogger, it is reasonable to assume that Cogger became aware of these threats, given
that he was one of only three employees in the bargaining unit. Such threats would reasonably
cause Cogger to be concerned that by speaking favorably about the Union during the
employer’s questioning he had placed his continued employment in jeopardy. For these
reasons I conclude that Coombe’s interrogation of Cogger on or about August 10, 2006, was
coercive in violation of Section 8(a)(1).
The General Counsel also alleges that the Respondent engaged in an unlawful
interrogation when, on September 13, Coombe called Ossefoort into his office, and asked what
it would take to convince the mechanics to drop the Union. Coombe asked Ossefoort if “a
couple of weeks vacation would do it,” and also stated that the Respondent would provide other
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benefits. As stated above, Coombe’s statements on this occasion included an unlawful
promise, and I also find that the questioning constituted an unlawful interrogation in violation of
Section 8(a)(1). The individual posing the questions was not Ossefoort’s direct supervisor, but
rather Coombe, the general manager of the entire facility. The interrogation took place in
Coombe’s office, out of the presence of other employees. Ossefoort was not shown to be
outspoken about his views regarding the Union and, indeed, he indicated that the Respondent
made him uncomfortable by repeatedly approaching him about the subject. Coombe did not
communicate a valid purpose for the interrogation or give Ossefoort assurances against
reprisal. To the contrary, on another occasion in September, Coombe told Ossefoort that the
Respondent might terminate the employment of all the pro-Union mechanics. Based on the
totality of the circumstances, I conclude that Coombe’s questioning of Ossefoort on September
13 reasonably tended to coerce and interfere with Ossefoort’s exercise of his Section 7 rights.
The General Counsel further alleges that Coombe engaged in an unlawful interrogation
when he called Conrad to his office in early October. I agree. On that occasion, Coombe asked
whether Conrad had been approached by the Union, and when Conrad said he had not,
Coombe said that it would be in Conrad’s “best interests” not to join. This questioning took
place in Coombe’s office, out of the presence of other employees. Once again, Coombe was
not the employee’s direct supervisor, but rather a higher ranking official with authority over the
entire facility. Prior to the questioning, Conrad had not publicly revealed whether he was
interested in being represented by the Union. Coombe provided no assurances that the
questioning had a benign purpose or that Conrad could answer in a manner supportive of the
Union without risking reprisal. To the contrary, Coombe’s statement that it would not be in
Conrad’s “best interests” to join the Union would tend to reinforce any fears an employee might
have that reprisals would follow from expressing support for the Union. Based on the totality of
the circumstances, I conclude that this constituted a coercive interrogation in violation of the Act.
On a subsequent occasion, Coombe approached Conrad while the latter was working at the
facility, and asked whether Conrad had received a subpoena from the Board and whether he
knew of anyone else who had been subpoenaed. This questioning took place against the
background of the prior interrogation, and most of the same factors militate in favor of finding
the interrogation about subpoenas to be coercive and unlawful. I note in particular that Coombe
did not tell Conrad that there was any benign purpose for the inquiry. Under such
circumstances, the Board has held that an employer violates Section 8(a)(1) when it
interrogates an employee about receiving a subpoena to appear in an unfair labor practices
hearing. Frank Leta Honda, 321 NLRB 482, 483 and 490-91(1996), citing Metalite Corp., 308
NLRB 266, 272 (1992).
For the reasons discussed above, I conclude that the Respondent violated Section
8(a)(1) of the Act by engaging in coercive interrogations that interfered with employees’ exercise
of their Section 7 rights.
4. Impression of Surveillance
The General Counsel alleges that the Respondent unlawfully created the impression that
employees’ union activities were under surveillance when, in early August 2006, Coombe told
Ossefoort that Anderson was the “ramrod” behind the Union, and when, in approximately
October 2006, Coombe told Conrad that the Respondent’s lawyers did not have to talk to
Conrad because the Respondent already knew which side Conrad was on. “When an employer
creates the impression among its employees that it is watching or spying on their union
activities, employees' future union activities, their future exercise of Section 7 rights, tend to be
inhibited.” Robert F. Kennedy Medical Center, 332 NLRB 1536, 1539-40 (2000). Therefore, an
employer violates Section 8(a)(1) by creating such an impression. Id. The employer’s conduct
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is evaluated from the perspective of the employees and is unlawful if the employees would
reasonably conclude from the statement in question that their protected activities were being
monitored. Rogers Electric, Inc., 346 NLRB No. 53, slip op. at 2 (2006); Robert F. Kennedy
Medical Center, 332 NLRB at 1540; Tres Estrellas de Oro, 329 NLRB 50, 51 (1999).
I conclude that Coombe’s remark that Anderson was the ramrod behind the Union effort
created the impression that the union activities were being monitored. There was no evidence
that, as of the time of Coombe’s remark, Anderson had voluntarily made public any role he was
playing in union activity at the facility. Under such circumstances, Coombe’s remark about
Anderson being the ramrod behind the Union would reasonably lead employees to conclude
that their union activities were under surveillance. George L. Mee Memorial Hospital, 348 NLRB
No. 15, slip op. at 17 (2006) (“From [employer’s] comments regarding [employee] being a
‘ringleader,’ it was reasonable to conclude that employees’ union activities were under
surveillance.”).
On the other hand, Coombe’s October statement that he knew which side Conrad was
on would not, in my view, have caused a reasonable employee to believe that protected
activities were under surveillance. In prior conversations with Coombe, Conrad had stated that
he was not part of the Union, did not believe that he was supposed to be part of the Union, and
had never been approached by the Union about joining. Those statements by Conrad are the
most obvious basis for Coombe’s comment that he knew which side Conrad was on, and
therefore Coombe’s comment would not provide a reason for believing that the Respondent was
surveilling protected activities.10
For the reasons discussed above, I conclude that the Respondent unlawfully created the
impression that employees’ protected activities were under surveillance when, in early August
2006, Coombe told Ossefoort that Anderson was the ramrod behind the Union.
5. Telling Ossefoort to Oppose the Union
The General Counsel alleges that the Respondent violated Section 8(a)(1) when
Coombe and Brown told Ossefoort to talk to other mechanics and try to persuade them to drop
the Union. The Board has consistently held that an employer violates Section 8(a)(1) when it
solicits an employee to campaign against Union representation. Allegheny Ludlum Corp., 333
NLRB 734, 741 (2001), enfd. 301 F.3d 167 (3rd Cir. 2002); PYA/Monarch, Inc., 275 NLRB 1194,
1196 (1985); Frank Black Mechanical Services, 271 NLRB 1302, 1316 (1984). Both Coombe
and Brown engaged in such unlawful solicitations during the period from early August to
September 1, 2006. I note, moreover, that the Respondent presented no evidence that
Ossefoort was himself opposed to union representation, much less that he had divulged any
such sentiments to either Coombe or Brown. Prior to soliciting Ossefoort to campaign against
the Union, neither Coombe nor Brown provided assurances that participation in the campaign
was voluntary and that refusal to participate would not result in reprisals. To the contrary, when
Ossefoort failed to immediately talk to Anderson and Cogger about rejecting the Union, Coombe
pestered him to do so.
For the reasons discussed above, I conclude that the Respondent violated Section
8(a)(1) by coercively soliciting Ossefoort to campaign against continued Union representation.

10 As found above, Conrad made the statements in response to unlawful interrogations, but
that does not change the conclusion that Coombe’s comment about knowing which side
Conrad on would not reasonably be attributed to employer surveillance.
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B. Alleged Violations of Section 8(a)(5) and (1)11
1. Respondent’s Refusal to Honor
Predecessor’s Labor Contract
As discussed above, Respondent has refused to honor the terms of the labor contract
that was in effect between Swanson and the Union. A successor employer is ordinarily free to
set initial terms on which it will hire the employees of a predecessor. NLRB v. Burns Security
Services, 406 U.S. 272, 294-95 (1972); Rosdev Hospitality, 349 NLRB No. 20, slip op. at 1
(2007). The General Counsel argues that the Respondent, a successor employer, did not have
that prerogative here because it explicitly assumed the Swanson labor contract as part of the
purchase agreement with Swanson.12 Before finding that a successor employer has assumed a
contract, the Board requires clear and convincing evidence of the employer’s consent, either
actual or constructive. 301 Holdings, LLC, 340 NLRB 366, 369 (2003); Resco Products, 331
NLRB 1546, 1549 (2000).
I conclude that the record does not provide clear and convincing evidence that the
Respondent consented to assume the Swanson labor contract. It is true that, as the General
Counsel notes, the purchase agreement between the Respondent and Swanson lists the labor
contract as one of those contracts being assumed by the Respondent. However, based on
consideration of all of the evidence, the only reasonable conclusion here is that the labor
contract was included in the list of assumed contracts as a result of the mutual mistake of the
Respondent and Swanson, not the consent of either. Officials of both parties to the purchase
agreement testified, without contradiction, that it was their mutual, stated, intent during the
discussions leading to the sale that the Swanson labor contract would not apply once the
Respondent took over operating the facility.13 Those officials testified that when they signed

11 The complaint paragraph alleging violations of the Respondent’s bargaining obligations
also makes reference to Section 8(d) of the Act. Complaint Paragraph 13. In its brief, the
General Counsel relies on Section 8(a)(5) and (1), but does not discuss Section 8(d), explain
how Section 8(d) was violated, or indicate that the relief sought depends in any way upon a
finding under Section 8(d). I conclude, that a finding under Section 8(d) is not required here.
12 The General Counsel has not argued that the Respondent is required to follow the terms
of the Swanson labor agreement under the exception, set for by the Supreme Court in NLRB v.
Burns Security, that applies when it is “perfectly clear” that a successor intends to retain all of
the employees in the unit and when those employees have been misled into believing that they
would be retained without change in their terms and conditions of employment. Spruce-Up
Corp., 209 NLRB 194, 195 (1974), enfd. 529 F.2d 516 (4th Cir. 1975) (Table), discussing NLRB
v. Burns Security, supra. At any rate, in this case it is undisputed that Coombe informed the
mechanics that if they agreed to be retained by the Respondent, the terms of the Swanson
contract would not apply.
13 Parol evidence is admissible to show mutual mistake. Northern Assurance Company of
London v. Grand View Building Association, 183 U.S. 308, 341 (1902); Federated American
Insurance Company, 219 NLRB 200, 203 (1975); NLRB v. Cook County School Bus, Inc., 283
F.3d 888, 893 (7th Cir. 2002). The General Counsel cites two cases in which the Board did not
permit a party to a contract to use parol evidence to vary the clearly stated requirements of the
contract. See Brief of the General Counsel at page 21, citing NDK Corp., 278 NLRB 1035
(1986); Quality Building Contractors, 342 NLRB 429 (2004). Neither of those cases, however,
involved a mutual mistake acknowledged by both parties to the contract. Rather they were
cases in which the parties to a contract were disputing its meaning or requirements. In the
Continued
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the agreement they did not believe it provided for the Respondent to assume the Swanson labor
contract and did not intend for the purchase agreement to create any such obligation.
Consistent with that intent, the Respondent never honored the Swanson labor contract.
Moreover, prior to hiring the mechanics, Coombe notified them that the terms of the Swanson
labor contract would not apply to employment with the Respondent. The evidence showed that,
prior to execution of the purchase agreement, neither the Union nor Swanson had urged that
the Respondent agree to assumption of the labor contract. To sum up, it is clear that the
Respondent never wanted to assume the labor contract, and there is no evidence to suggest
that the Respondent might have agreed to assumption against its wishes because of outside
pressure. Under these circumstances, it is simply not reasonable to view the inclusion of the
language providing for assumption of the labor contract as the result of anything other than
mutual mistake.
The General Counsel argues that “Parties who enter agreements, which affect the rights
of third parties like the Union and the employees, should not be allowed to later simply cancel
the agreements or ignore them if the provisions turn out to be distasteful.” That argument might
be persuasive if the Respondent had started out by honoring, or intending to honor, the
Swanson labor contract, and only ceased to do so upon discovering that the contract was
disadvantageous to it in some respect. However, in this instance Coombe notified the union
employees, in advance of hiring them, that the new owners would not be honoring the labor
contract. There was no evidence that when the union employees accepted employment with
the Respondent they were relying on the language in the purchase agreement regarding
assumption of the labor contract, or even that they were aware of that language before the
Board investigator obtained the purchase agreement months later. Under the circumstances
present here, it is clear not only that the Respondent never intended to assume the Swanson
labor contract, but that the Respondent did not mislead prospective employees into believing
that the labor contract would be honored if they accepted employment with the new owners.
The General Counsel also contends that I should reject as implausible the testimony of
J. Eichorn and M. Tarbuck that they were unaware the purchase agreement listed the Swanson
labor contract as an assumed contract. I disagree. The purchase agreement and its
attachments totaled approximately 50 pages. In all of those pages there is only a single
reference to the labor agreement being assumed, and that reference does not come in the body
of the contract, but in one of the approximately 19 attached schedules. The testimony showed
that a flurry of documents relating to the sale was exchanged shortly before the Respondent
and Swanson executed the purchase agreement. At the time of the trial, J. Eichorn was a 22-
year old, with a community college degree, who had relied on his father to fund the purchase of
Swanson’s assets. M. Tarbuck was the general manager, and part-owner, of a business in
extreme financial distress. Neither J. Eichorn nor M. Tarbuck is an attorney. Under these
circumstances, I do not find it implausible that a single reference to the labor contract in an
attachment to the purchase agreement would have escaped the notice of J. Eichorn and M.
Tarbuck.
For the reasons stated above, the allegation that the Respondent violated Section
_________________________
instant case, on the other hand, the parties to the purchase agreement are united in stating that
they did not intend to provide for the Respondent to assume the Swanson labor contract. It is
two non-parties to the purchase agreement – the General Counsel and the Union – who are
contending that the purchase agreement should be given an effect that is at odds with what both
parties to that agreement testified they intended.
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8(a)(5) and (1) by refusing to honor and/or execute the labor contract of its predecessor
Swanson should be dismissed.
2. Direct Dealing
The General Counsel alleges that the Respondent dealt directly with unit employees in
violation of Section 8(a)(5) and (1) during the conversation that Coombe initiated with Ossefoort
on September 13. As an admitted successor to Swanson, the Respondent had an obligation
under NLRB v. Burns International Security Services, 406 U.S. at 281, to recognize and bargain
with the Union as the exclusive collective bargaining representative of its unit employees. The
obligation to bargain exclusively with the collective bargaining representative imposes a
“negative duty” not to bargain with any other representative, including the bargaining unit
employees themselves. Hacienda Hotel, 348 NLRB No. 49, slip op. at 15 (2006), citing Medo
Photo Supply Corp., 321 U.S. 678, 684 (1944). In order to prove unlawful direct dealing, the
General Counsel must show: “(1) that the Respondent was communicating directly with union-
represented employees; (2) the discussion was for the purpose of establishing or changing
wages, hours, and terms and conditions of employment or undercutting the Union’s role in
bargaining; and (3) such communication was made to the exclusion of the Union.” Permanente
Medical Group, 332 NLRB 1143, 1144 (2000); see also Hacienda Hotel, Inc., supra. I find that
the elements of unlawful direct dealing are established in this case.
As discussed above, the Respondent and the Union had a negotiating session on
September 12. The next morning, Coombe called Ossefoort into his office and asked what it
would take to convince the mechanics to drop the Union. Coombe asked Ossefoort if “a couple
of weeks of vacation would do it,” and told Ossefoort that the Respondent would provide cost-of-
living raises and back pay. When Ossefoort asked if the Respondent would provide insurance
and a 401(k) plan, Coombe responded that a 401(k) plan was a possibility. The offers and
overtures made by Coombe involved wages and other mandatory subjects of bargaining.
Coombe made these statements directly to a union-represented employee, and out of the
presence of Klingfus, the Union spokesperson. It is plain that Coombe’s offer had the purpose
not only of negotiating unit employees’ terms of employment, but also of undercutting the
Union’s role in bargaining by conditioning the Respondent’s offer on the unit members’
abandonment of their collective bargaining representative. The record does not show that the
Respondent had previously raised any of these terms during negotiations with the Union and, at
any rate, Coombe encouraged Ossefoort to suggest additional desirable terms out of the
presence of the bargaining representative. Certainly, during negotiations with the Union the
Respondent’s offers were not conditioned on the employees’ abandonment of the Union.
For the reasons discussed above, I conclude that the Respondent violated Section
8(a)(5) and (1), when it bypassed the Union and dealt directly with unit employees regarding
terms and conditions of employment.
3. Refusal to Bargain
The General Counsel alleges that the Respondent unlawfully refused to recognize and
bargain with the Union as the exclusive collective bargaining representative of its employees
within the bargaining unit. Although the Respondent now acknowledges that it is a successor
employer with bargaining obligations regarding the Union, it is undisputed that it did not
recognize those obligations when it began operating the facility on May 1, 2006. The
Respondent’s own witnesses testified that the Eichorns told Coombe there would be no union
once the Respondent took over. Coombe admitted that his initial stance as general manager
was that he had no obligation to deal with the Union and would not do so. The record shows
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that on approximately June 1, a month after the Respondent began operations, Coombe
received a letter from the Union stating that it still represented the mechanics at the facility and
requesting that the Respondent either honor the existing labor contract or contact the Union in
order to schedule negotiations for a new contract. Because he believed that he was not
obligated to negotiate with the Union, and did not intend to do so, Coombe did not respond in
any way to the letter from the Union.
It was not until August 10, over two months after the date of the Union’s letter, and
subsequent to the filing of the first charge in this case, that the Respondent first met with the
Union. It was another 11 days before Coombe sent a letter to Klingfus stating that the
Respondent “was prepared to meet and engage in good faith negotiations with the union
concerning the terms and conditions” of unit employees. As shown by the violations discussed
above, however, even after the Respondent declared that it was willing to negotiate in good faith
with the Union, and began meeting with it, the Respondent engaged in multiple activities to
unlawfully undermine the Union’s role as collective bargaining representative. In September
and October 2006, at a time when the Respondent claims it was negotiating in good faith, the
Respondent: bypassed the Union by dealing directly with a unit employee about terms and
conditions of employment; promised unit employees a raise and other benefits if they would
drop the Union; threatened to terminate the employment of unit employees who supported the
Union; coercively interrogated unit employees; and solicited a unit employee to campaign
against continued union representation. Given the Respondent’s ongoing direct dealing, and
other unlawful conduct, I conclude that the Respondent cannot argue that under Passavant
Memorial Area Hospital, 237 NLRB 138 (1978), it has effectively repudiated its unlawful refusal
to recognize and bargain with the Union. Moreover, although the Respondent sent a letter to
the Union expressing a willingness to negotiate, that communication did not meet the Passavant
standards because, inter alia, it did not specify the prior unlawful conduct.
For the reasons stated above, I conclude that, beginning on about June 1, 2006, the
Respondent violated Section 8(a)(5) and (1) by failing and refusing to recognize and bargain in
good faith with the Union as the exclusive collective bargaining representative of unit
employees.
Conclusions of Law
1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent interfered with employees' exercise of their Section 7 rights in
violation of Section 8(a)(1) of the Act by: threatening to discharge employees because they
supported the Union; promising that it would grant unit employees improved terms and/or
conditions of employment if they abandoned the Union as their bargaining representative;
engaging in coercive interrogations of unit employees; creating the impression that employees’
protected activities were under surveillance; and coercively soliciting a unit employee to
campaign against continued Union representation.
4. The Respondent violated Section 8(a)(5) and (1) by: bypassing the Union and dealing
directly with unit employees regarding terms and conditions of employment; and, beginning on
about June 1, 2006, by failing and refusing to recognize and bargain in good faith with the Union
as the exclusive collective bargaining representative of unit employees.
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Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. In particular, I conclude that it is appropriate to issue a
bargaining order because the Respondent has failed and refused to recognize and bargain in
good faith with the Union, and has not effectively repudiated that unlawful conduct.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended Order.14
ORDER
The Respondent, Eichorn Motors, Inc., Grand Rapids, Minnesota, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with discharge or other adverse action because they support
the Union or engage in other conduct protected by Section 7 of the Act.
(b) Promising to grant unit employees improved terms and/or conditions of employment
if the employees withdraw support from the Union as their collective bargaining representative.
(c) Coercively interrogating any employee about union support, union activities, or the
receipt of subpoenas in proceedings before the National Labor Relations Board.
(d) Creating the impression that it is surveilling employees’ union activities.
(e) Coercively soliciting any unit employee to campaign against union representation.
(f) Bypassing the Union and dealing directly with unit employees regarding terms and
conditions of employment.
(g) Failing and/or refusing to recognize and bargain in good faith with the Union as the
exclusive bargaining representative of unit employees.
(h) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive representative of the employees
in the following appropriate unit concerning terms and conditions of employment and, if an
understanding is reached, embody the understanding in a signed agreement:

14 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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All automobile mechanics, partsmen, washers, polishers and new/used car prep,
employed by Eichorn Motors, Inc., but not including shop foremen,
superintendents, office help and salesmen.
(b) Within 14 days after service by the Region, post at its facility in Grand Rapids,
Minnesota, copies of the attached notice marked “Appendix.”15 Copies of the notice, on forms
provided by the Regional Director for Region 18, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time since June 1, 2006.
(c) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C. March 14, 2007
____________________
PAUL BOGAS
Administrative Law Judge

15 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD–19–07
Grand Rapids, MN
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT threaten you with discharge or other adverse action because you support the
United Auto Workers International Union (the Union) or engage in other conduct protected by
Section 7 of the National Labor Relations Act (the Act).
WE WILL NOT promise to grant you improved terms and/or conditions of employment in
exchange for your withdrawing support from the Union.
WE WILL NOT coercively question you about your union support, union activities, or the receipt
of subpoenas in a proceeding before the National Labor Relations Board.
WE WILL NOT create the impression that we are engaging in surveillance of your union
activities.
WE WILL NOT coercively solicit you to campaign against continued union representation.
WE WILL NOT bypass the Union and deal directly with you regarding your terms and conditions
of employment.
WE WILL NOT fail and/or refuse to recognize and bargain in good faith with the Union as your
exclusive collective bargaining representative.
WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
JD–19–07
Grand Rapids, MN
WE WILL, on request, bargain in good faith with the Union and put in writing and sign any
agreement reached on terms and conditions of employment for our employees in the bargaining
unit:
All automobile mechanics, partsmen, washers, polishers and new/used car prep,
employed by Eichorn Motors, Inc., but not including shop foremen,
superintendents, office help and salesmen.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
330 South Second Avenue, Towle Building, Suite 790
Minneapolis, Minnesota 55401-2221
Hours: 8 a.m. to 4:30 p.m.
612-348-1757.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 612-348-1770.