Metro Toyota

National Labor Relations Board - Board Decisions

Jul 31, 1995

318 N.L.R.B. 168 (N.L.R.B. 1995)

168
318 NLRB No. 12
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We agree with the judge that it is appropriate to order the Re-
spondent to bargain with the Union and to cease and desist from rec-
ognizing United Service Workers of America Local 355. In so
doing, however, we do not rely on his analogizing Local 355’s
standing to that of the unlawful employee involvement committee
found in U.S. Marine Co., 293 NLRB 669, 688 (1989), enfd. 916
F.2d 1183 (7th Cir. 1990), enfd. en banc 944 F.2d 1305 (7th Cir.
1991).
1 While every apparent or nonapparent conflict in the evidence
may not have been specifically resolved herein, my findings are
based on my examination of the entire record, my observation of the
witnesses’ demeanor while testifying, and my evaluation of the reli-
ability of their testimony. Accordingly, any testimony which is in-
consistent with or contrary to my findings is hereby discredited.
2 All dates herein unless otherwise indicated are in 1992.
N.R. Automotive, Inc., d/b/a Metro Toyota and
Local Lodge 447, District Lodge 15, Inter-
national Association of Machinists & Aero-
space Workers, AFL–CIO. Case 2–CA–25976
July 31, 1995
DECISION AND ORDER
BY MEMBERS STEPHENS, COHEN, AND
TRUESDALE
On May 18, 1994, Administrative Law Judge Steven
B. Fish issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.1
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, N.R. Automotive, Inc.,
d/b/a Metro Toyota, New Rochelle, New York, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order.
Eric H. Brooks and James G. Paulsen, Esqs., for the General
Counsel.
Perry S. Heidecker and Robert F. Milman, Esqs. (Marshall
M. Miller Associates, Inc.), of Lake Success, New York,
for the Respondent.
William Rudis, Grand Lodge Representative, of Stanford,
Connecticut, for the Charging Party.
DECISION
STATEMENT OF THE CASE
STEVEN B. FISH, Administrative Law Judge. The trial of
the above case was held before me on November 8, 9, and
19, 1993, in New York, New York. The complaint which
issued on March 16, 1993, amended on October 7, 1993, and
again at trial, alleges in substance that N. R. Automotive,
Inc., d/b/a Metro Toyota (Respondent) violated Section
8(a)(1) and (5) of the Act by refusing to recognize and bar-
gain with Local Lodge 447, District Lodge 15, International
Association of Machinists & Aerospace Workers, AFL–CIO
(the Union, Charging Party, or Local 447) as the successor
to Tri-Star Automotive Group (Tri-Star), Section 8(a)(1) and
(3) of the Act by the refusal to hire James Hession and
Leonard Murray because of their activities on behalf of the
Union, and Section 8(a)(1) and (5) of the Act by refusing to
bargain with the Union concerning its refusal to hire Hession
and Murray, and the reduction in the size of the unit.
Briefs have been filed by the General Counsel and Re-
spondent and have been carefully considered. Based on the
entire record,1 including my observation of the demeanor of
the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
Respondent is a corporation engaged in the retail selling,
leasing, and servicing new and used automobiles at a facility
in New Rochelle, New York. Based on a projection of its op-
erations since August 18, 1992,2 Respondent, in conducting
its business operations, will annually derive gross revenues
in excess of $500,000 and since August 14, 1992, has pro-
duced goods and supplies directly from suppliers located out-
side the State of New York valued in excess of $5000. It is
admitted and I so find that Respondent is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
I also find that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
II. FACTS
For many years the Union had been the collective-bargain-
ing representative for employees in a unit of service shop
employees employed at 47 Cedar Street, New Rochelle, New
York, by various employers including Crabtree Toyota and
Tri-Star Automotive Group. A collective-bargaining agree-
ment was executed by Tri-Star and the Union effective from
September 1, 1990, to August 31, 1993, which contained a
union-security clause, as well as a clause providing that if
layoffs or reductions in force are necessary, Tri-Star ‘‘shall
lay off . . . in accordance with the principles of seniority.’’
Tri-Star was owned by Stewart and Kit Watson and was
supervised by Charles Wilk, its corporate vice president.
During the summer of 1992, and prior to its last day of oper-
ation on August 14, Tri-Star employed 15 unit employees,
who are referred to as mechanics or technicians. They in-
cluded James Hession who was the shop steward for Local
447, and Earnest Sacarello who was assistant shop steward.
Hession was the shop steward at the facility since 1980.
Hession in that connection participated in negotiations along
with Union Agent Otero and other members of the negotia-
tion team, which also included Assistant Steward Sacarello.
Hession never filed any grievances on behalf of any em-
ployees during his tenure as shop steward. He did become
involved with a grievance filed in 1980 against Crabtree con-
169METRO TOYOTA
3 As will be detailed more fully below, employees did contribute
a small amount of money toward dental coverage.
4 Lia also agreed to purchase eight other dealerships operated by
the Watsons.
5 Lia was and is the president and treasurer of Respondent.
cerning the layoff of employees. Tri-Star and subsequently
Respondent’s service manager, Mickey Blank, was not em-
ployed by Crabtree at that time.
In December 1991, the employees of Tri-Star who were
called into a meeting by the general manager, who told them
that as of January 1, 1992, the Company did not want to pay
for health benefits any longer, and that the employees would
have to pay for it in its entirety. Hession and Sacarella both
protested on behalf of the employees that there was a con-
tract in existence and Tri-Star could not discontinue paying.
After the meeting, Hession called Union Business Agent
Otero, who came down, spoke to someone, and reported to
Hession that the matter was straightened out and employees
would continue to receive coverage paid for mainly by Tri-
Star.3
There is no record evidence that Blank was aware of this
incident, and he denies being aware of any plan or attempt
by Tri-Star to eliminate medical benefits, other than its deci-
sion detailed below to terminate dental benefits.
Sometime in early 1992, Tri-Star which had been experi-
encing financial difficulties filed a petition for bankruptcy
under Chapter XI of the Bankruptcy Code. Tri-Star continued
to operate the business after the filing, and for the most part
complied with the terms of the collective-bargaining agree-
ment with the Union.
Don Lia, an experienced automobile industry executive,
became interested in acquiring the assets of Respondent, as
well as other dealerships owned by the Watsons. On Feb-
ruary 14, 1992, Lia and Tri-Star entered into a dealer/pur-
chase agreement for the sale of Tri-Star’s Toyota assets,
which includes the facility at 47 Cedar Street, New Rochelle,
New York, and the machinery, equipment, parts, and sup-
plies at such facility.4
On April 29, Respondent filed for incorporation with the
New York Department of State as N.R. Automotive, Inc. On
May 11, it filed a certificate of assumed name with the same
agency to utilize a d/b/a of Metro-Toyota.5 On May 22, Tri-
Star and Respondent executed a first amendment to the
dealer/purchase agreement which set a closing deadline of
July 10. On May 29, the bankruptcy court issued an order
approving the dealer/purchase agreement and authorizing the
sale.
Wayne Siegel was employed by Don Lia’s corporate man-
agement company, and as of mid-May 1992 was appointed
vice president of Respondent by Lia. At that time, Siegel was
sent by Lia to oversee operations at the Tri-Star premises.
According to Siegel, this was done at the insistence of
Chemical Bank as a condition of continuing to fund Tri-Star
during the interim period, before Respondent assumed com-
plete control of the facility.
While at the facility, Siegel was present for 5 days a week
and at least 8 hours per day. Siegel insisted that he had no
supervisory or managerial authority concerning the Tri-Star
operations during this period of time, and that he was there
solely to observe what was going on to satisfy the Bank.
Siegel however added that the bank did not have faith that
Tri-Star in its condition ‘‘would run the way that they would
like it to run, so we were there really to observe how they
were operating things and making sure that things were taken
care of on a day to day basis.’’ Siegel also conceded that he
was there to make sure that ‘‘whatever financial policies
could be put in place to at least limit the loss that would take
place.’’
During this period of time (May through August 14)
Siegel was being paid by Lia or through Lia’s Company and
he reported regularly to Lia as to what he had found out
about Tri-Star’s operations, including where expenditures
were excessive and areas where expenditures could be re-
duced. Interestingly, although Siegel was at the premises, al-
legedly at the insistence of Chemical Bank, he admits that
he made no recommendations to, nor did he have any com-
munications with, the bank during this period of time. Ac-
cording to Siegel, the bank ‘‘just wanted to know that an
automobile person was there conducting business the way an
automobile dealership should operate, not that it was hap-
hazard.’’ Finally, Siegel had been told by Lia that when the
closing was held, and Respondent commenced operating the
business, that he would be vice president and in direct charge
of the day-to-day running of the operation.
Although as noted above, the closing of the sale was
scheduled for July 10, the closing date was postponed. The
record does not disclose when or why or if the closing was
rescheduled, or what new date if any was agreed on for the
closing, prior to July 10.
On July 8, the New York State Department of Taxation
and Finance issued a certificate of authority to Respondent
to collect sales taxes.
At some point prior to July 13, Tri-Star eliminated dental
coverage for all of its employees. The dental coverage was
a self-insured plan for all of Tri-Star’s employees, including
supervisors and nonunit personnel, which Tri-Star provided,
but for which employees contributed a portion of their sala-
ries to the plan. The collective-bargaining agreement between
Tri-Star and the Union does not mention a dental plan, but
does refer to the fact that all employees covered by the con-
tract shall be eligible to participate in the Tri-Star welfare
and medical plans. It appears that the dental plan referred to
was part of the Tri-Star medical and welfare plan. When em-
ployees were informed about the loss of their dental cov-
erage, several of them complained about it to Mickey Blank,
Tri-Star’s service manager, who himself had his dental cov-
erage ended as well. Blank inquired of Chuck Wilk about the
matter, and was informed that after Tri-Star had filed for
bankruptcy, employees had taken advantage of the plan, ap-
parently trying to make sure to get their dental work done
before the plan was ended. Therefore, Wilk explained that
since the dental plan was self-funded, it had simply ran out
of money, and consequently the employees no longer were
covered for dental claims. Wilk also made a similar expla-
nation to Siegel about the elimination of the dental plan,
prior to July 13.
Several employees also complained to John Otero, busi-
ness representative of the Union, about the loss of their den-
tal plan, and informed him that there was a new owner in
the shop. Otero, on July 13, went to the facility and initially
spoke to some employees. The employees confirmed that
their dental coverage had been eliminated and that they
thought that there was a new owner up there. The employees
170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Siegel had indicated to Blank in a conversation in late June or
early July that if Respondent took over, it intended to hire Blank as
service manager.
7 Siegel testified that he had in his observation of the operations
of Tri-Star concluded that it was overstaffed with technicians, but
that he did not share this conclusion with Blank, because he wanted
Blank as his service manager to make his own determination on this
subject.
did not mention the name of the new company, but did make
some reference to the name Don Lia.
Otero then asked Blank if he could speak to Wilk. Blank
replied that he should speak with Wayne Siegel because he
was the new owner. Otero then went upstairs and met with
Siegel in what had formerly been Wilk’s office.
Otero introduced himself as the business representative for
the Union, and stated that he represented the employees in
the shop. Siegel replied that he was the general manager of
Metro Toyota, and that he thought that Metro Toyota was
going to take over the dealership in a week or two. Otero
asked Siegel if Respondent would recognize and honor the
Union’s collective-bargaining agreement. Siegel answered
that he would honor the contract, but that he couldn’t honor
the seniority clause. Otero responded that the Union would
be willing to negotiate something to help him operate his
business, but he couldn’t give up the seniority clause.
Otero then asked if the employees would be receiving their
vacations or vacation pay. Siegel responded that Tri-Star was
going to pay the employees what they were owed for vaca-
tion, and that after Respondent took over, he would honor
the employees’ requests for time off, without pay. Otero also
inquired about the dental plan being discontinued. Siegel ex-
plained that when Tri-Star announced its bankruptcy, every-
body started using the plan, and the self-funded plan had run
out of money. Otero suggested that the Union’s dental plan
be instituted. Siegel asked to see a copy of the dental plan
and Otero agreed to send it to him. Finally, Otero asked why
the demo plan had been discontinued. Siegel replied that
there was a ‘‘big hit’’ on it, but that they intended to re-
institute the plan.
My findings above with respect to the July 13 conversa-
tion between Siegel and Otero is based on a compilation of
the credited testimony of these two witnesses. For the most
part, I credited Otero’s version of the discussion, particularly
in regard to the main point in dispute between the two wit-
nesses, i.e., whether Siegel agreed to honor the Union’s con-
tract, with the exception of the seniority clause. I have cred-
ited Otero as detailed above that Siegel did so agree, con-
trary to Siegel’s testimony that since he didn’t know when
or if Respondent would close, he did not and would not have
been in a position to make any commitments about a con-
tract. I note, however, that at that time a number of steps had
been taken and papers filed toward the finalization of the
sale, and indeed Siegel concedes that by early August, he
had been told of a firm closing date of August 17. Moreover,
Blank had introduced Siegel as the new owner. In these cir-
cumstances, I believe that Siegel on July 13 was fairly cer-
tain that the sale would be effectuated, and that he would be
likely to discuss contractual terms or other matters with
Otero. Indeed, Siegel does not deny that he discussed vaca-
tion pay and demos with Otero. He also admits that he ex-
plained to Otero why the dental plan had been eliminated,
and more importantly asked Otero to send him a copy of the
Union’s dental plan for his review. These actions do not evi-
dence an employer uncertain about whether it was going to
take over, as Siegel so testified. Finally, the Union’s subse-
quent letter to Siegel, dated August 20, which confirms
Otero’s account of the July 13 conversation was not re-
sponded to nor disputed by Siegel. It is noteworthy that by
that time (August 20), the IAM contract with Tri-Star had
been as detailed infra set aside by the bankruptcy court, but
was still in effect on July 13. In my view, Siegel was well
aware on July 13 that Tri-Star would be seeking to have its
contract with the Union set aside, prior to the closing, and
that his tentative agreement to honor the contract (except for
the seniority clause) was meant to forestall the Union from
expressing any opposition to the court’s rejection of the
agreement.
Accordingly, as set forth above, I credit Otero’s version of
the conversation with respect to these matters.
On July 17, the New York State Department of Motor Ve-
hicles issued an official business certificate, registering Re-
spondent as a new-and-used vehicle dealer.
During the first week in August, Lia informed Siegel that
all problems concerning the sale had been worked out, and
the closing was scheduled for August 17. Siegel then in-
formed Blank of the closing date and confirmed his earlier
intention to retain Blank as service manager at that time.6
Siegel asked Blank how many technicians he believed Re-
spondent would need to run an efficient and profitable serv-
ice department. Blank responded that he felt that 12 techni-
cians would be adequate. Siegel instructed Blank that it
would be Blank’s decision about how many employees
would be hired, as well as which employees from Tri-Star
would be selected.7
Shortly thereafter, but still during early August, Blank
called a meeting of all bargaining unit employees. He in-
formed the employees that a new owner, Don Lia, would be
purchasing the dealership under the name of Metro. Blank
assured the employees that everything including benefits
would be the same under the new owner, except for the
name on the building. Blank told the employees that they
need not worry about their jobs because everyone would be
retained and be employed when the new owner took over.
Blank reminded the employees that they had gone through
the same problem when Crabtree was taken over by Tri-Star,
and they would be putting Tri-Star into Metro, ‘‘no dif-
ference.’’ Blank added, ‘‘I’m going to be here next year;
we’re all going to have a job.’’
On August 13, Blank called another shop meeting. He in-
formed the employees that Friday, August 14, would be the
last day as employees of Tri-Star, and that on Monday, Au-
gust 17, Metro would be taking over. Blank again assured
the employees that on Monday everything would remain the
same, except for the name of the Company, and all current
Tri-Star employees would be retained by the new owner.
Blank added that on Friday, August 14 (the next day), the
employees would be assigned to clean up the facility, so that
it will look nice and clean when Metro took over officially
on Monday, August 17.
On the same day of this meeting, August 13, the U.S.
Bankruptcy Court Judge issued an order authorizing Tri-Star
to reject all franchises, leases, and contracts, including spe-
cifically its contract with the Union, ‘‘as of and conditioned
upon the closing of the Sale of the Debtor’s operating assets
171METRO TOYOTA
8 While Blank admitted only to giving these assurances in his first
conversation with employees, I credit employees Hession and
Murray’s mutually corroborative testimony that Blank gave similar
assurances on August 13. Even as to that meeting, Blank while de-
nying that he told employees that they would all be hired, admitted
that he told them, that they would be cleaning up on Friday so that
when ‘‘we all come in on Monday,’’ Lia would see a clean shop.
Blank also conceded that he did not tell employees that some of
them would not be retained on that date.
9 He had left Crabtree voluntarily in 1987.
10 It is undisputed that P.D.I. work requires little skill or experi-
ence, and consists of cleaning up the car, checking fluid levels, put-
ting on hubcaps, and starting the engine.
to Don Lia on August 17, 1992, or such later date to which
the closing is adjourned.’’
Blank admitted that he had given assurances8 to the Tri-
Star employees that they would all be retained by the new
owner, but claims that he did so at the request of Tri-Star’s
owners. Blank asserts that Watson told him that the business
was probably going to be sold, but that the employees were
nervous about their future and whether they would be re-
tained by any new company, and it was affecting their work.
Watson didn’t want the employees to get scared and go look
for other jobs and lose their chance to be employed by
Metro. Watson therefore, according to Blank, instructed
Blank to assure the employees that their jobs would be safe
when a new owner comes in, so that the employees could
get back to work and get their minds off the company’s
problems.
While Blank was assuring all the employees of Tri-Star of
their continued employment when Metro took over, in fact
he asserted, corroborated by Siegel that he recommended to
Siegel and Siegel had agreed that Metro would hire only 12
of Tri-Star’s technicians. Siegel left the decision as to which
Tri-Star employees to retain entirely up to Blank.
With respect to the decision to retain only 12 employees,
Blank had felt for a long time that Tri-Star was overstaffed
with technicians, for the amount of service that was coming
in, and he believed that 12 was an adequate number to run
the operation. Siegel as noted concurred in Blank’s judg-
ment, particularly since he had reviewed Tri-Star’s financial
records, and noticed that Tri-Star had lost $1.2 million in
1991, and was losing $100,000 a month in 1992. Siegel also
had concluded that his evaluation of service department
records revealed a loss of $20,000 to $50,000 per month.
Siegel also noticed, and Blank agreed that Tri-Star techni-
cians had an excess of ‘‘unapplied time.’’ Unapplied time is
the difference between clock hours and book hours. Book
hours is the time specified in a manual for a specific job. If
an employee produces fewer book hours than clock hours, he
is still paid for all clock hours. Thus, ‘‘unapplied time’’ is
considered a financial drain on the company, and something
to be avoided if possible.
As to the decision of which technicians to let go, Blank
testified credibly that he thought very carefully about the
matter, and it was not an easy decision for him to make,
since he worked with these employees for many years, and
they all had families. Blank himself had been out of work
in the past and it was not easy for him to tell someone to
go home and tell their wife not to buy groceries.
Blank testified that he made his decision solely on the
basis of his evaluation of the technical abilities of the em-
ployees. He concluded that employees James Hession,
George Murray, and Esmond llll would not be re-
tained. While Hession and Murray were the most senior em-
ployees in the department, Blank did not consider seniority
in his decision.
Esmond was a relatively new employee, who was em-
ployed primarily to work on Hyundai cars and had limited
experience working with Toyota automobiles. Since Re-
spondent would not be handling Hyundai cars, Blank decided
that Esmond would not be rehired.
As for Hession, Blank testified that he believed that
Hession was the least competent technician in the shop.
Hession, although as noted, was one of the most senior em-
ployees in the department, he, in fact, had very little experi-
ence performing skilled mechanics’ work during his years of
service with Tri-Star and Crabtree. While Hession did some
mechanics’ work at Crabtree, by 1986 and 1987, when Blank
was first employed at Crabtree, Hession was employed as a
limo driver for Robert Crabtree, and he lost touch with work-
ing on cars.
When Crabtree sold the business to Tri-Star, Crabtree
asked Stewart Watson to make sure that Hession, as well as
two other longtime Crabtree nonunion employees, Tom
Santoro, a porter, and Ann Conley, a secretary, remain em-
ployed, since they could not commute to Crabtree’s new
dealership in Connecticut.
Blank returned to work at 47 Cedar Street in January
1991,9 Tri-Star was the employer and Blank again was em-
ployed as service manager. At that time, he noticed that
Hession was employed as an ‘‘A’’ technician, which is the
highest skilled category and requires the ability to diagnose
and fix problems in transmissions, electrical, engine, and the
suspension system. Blank asked Vance Cristifora, an official
of Tri-Star what Session was doing working in the shop.
Cristifora explained to Blank the above-described arrange-
ment that had been worked out between Watson and Crabtree
to keep Hession as well as Santoro and Conley employed by
Tri-Star. Blank asked Cristifora what Hession does, particu-
larly since Blank was aware that Hession had previously
been employed as a limo driver. Cristifora informed Blank
that Hession does oil changes, and P.D.I.’s, which is short-
hand for predelivery inspections,10 and that Blank should
make sure that Hession makes his 40 hours per week. Blank
asked if there was anything that could be done about it, and
Cristifora replied that Watson takes care of his people, and
that Hession didn’t cause any problems, so ‘‘just get it
done.’’
Subsequently, Blank complained to another official of Tri-
Star that Hession was not performing mechanics work and
recommended either termination or reduction of his grade.
The official told Blank to live with Hession, but try to talk
to Hession about going to Toyota school to improve his
skills. Blank then asked Session about going to Toyota
school to take some beginner courses in brakes and suspen-
sion so he could learn to perform work other than oil
changes or unskilled P.D.I. work. Hession replied that if
Toyota had a P.D.I. school he would go, but otherwise there
was no use in going back to school, since he didn’t want to
learn anything else. There is no Toyota P.D.I. school, nor is
there any need for one.
172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 In fact, Blank subsequently found Esmond two jobs in the next
year and a half.
Subsequent to this conversation, during monthly manager
meetings, Blank would again bring up the problem of
Hession and would simply be told to keep him on, don’t
worry about it, and that Hession was not hurting anybody.
As to Murray, Blank testified that, in his view, Murray
was the second least competent technician in the shop, next
to Hession. Although Blank admits approving a merit wage
increase to Murray dated ‘‘1/26/91,’’ Blank testified that this
action had no relationship to Murray’s work abilities or per-
formance. Blank explained that when he returned as service
manager in January 1991, Murray asked him for a raise, and
pointed out that everybody in the shop had gotten raises, ex-
cept for him in the last 2 years. Blank replied that he could
not make the decision since he had only been service man-
ager for a few weeks, but he would look at Murray’s person-
nel file and speak to Cristifora about it. Subsequently, Blank
spoke to Cristifora after ascertaining that Murray had not
been given a raise for a year or two, and Cristifora agreed
to give Murray a raise for longevity. Blank did not explain
why Respondent’s personnel form checked off merit in-
crease, rather than length of service increase, which also ap-
pears on the form.
Blank also decided that he did not wish to retain Santoro,
the nonunit part-time porter, because he felt that his two full-
time porters could adequately perform the work. Santoro
mainly drove the customers to the train station, and although
he had been working for 50 years at the facility, Blank de-
cided that he was no longer needed, and the full-time porters
could perform this work.
While Blank had tentatively decided by early August that
Metro would not retain Hession, Murray, and Esmond, he
did not definitely make up his mind until the evening of Au-
gust 13. During the second week of August, he decided to
solicit the opinion of his two service writers on the subject.
The service writers, who were also going to be hired by
Metro, were quasi-supervisors and nonunit personnel who
had contact with the technicians and were familiar with their
abilities. Blank explained to the service writers that when
Tri-Star became Metro, he planned on employing 12 techni-
cians, and since they now had 15, he planned on laying off
3 individuals. He stated that he wished to keep the 12 most
qualified technicians, and asked the service writers to each
make a list of the 12 employees who they felt were the most
qualified. The service writers complied with Blank’s request
and each made a list. One of the service writers produced a
list identical to Blank’s; i.e., Hession, Murray, and Esmond
as the three not to be retained. The other service writer also
submitted a list without Hession and Murray, but differed on
the third person, recommending that Esmond be retained and
a different individual be let go. Blank discussed with the
service writer the reasons why he felt Esmond should be kept
on, rather than the other indiviual. Blank after this discus-
sion, and after considerable thought and ‘‘tossing and turn-
ing’’ in his sleep, finally made up his mind on the evening
of August 13, that Hession, Murray, and Esmond would be
the three technicians to be let go by Metro.
On the morning of Friday, August 14, Blank informed
Siegel that he would not be retaining Hession, Murray, and
Esmond, as well as part-time porter Santoro. Blank did not
inform Siegel that Hession was the shop steward, nor was
Siegel aware of that fact. Blank testified unequivocally that
neither Hession’s shop steward position nor union activities
played any role in his decision not to retain Hession as an
employee of Metro.
Blank in the early afternoon called Esmond, Hession, and
Murray into the office separately and notified them of his de-
cision. He told Esmond that, as he knews, Tri-Star was clos-
ing and reopening on Monday as Metro. Blank stated that he
was hired by Metro as service manager and that he didn’t
need the full complement of technicians. Blank informed
Esmond that he has to lay off some people, and that Esmond
was being let go because of his mechanical ability, more par-
ticularly that his experience was mainly with Hyundai cars,
and his limited experience working on Toyota cars. Esmond
accepted the decision without comment, and Blank indicated
that he would help find Esmond a job.11
Murray was also told by Blank that Tri-Star was closing,
Blank was service manager of Metro, and that he wouldn’t
be needing the same number of technicians. He told Murray
that he and two others would not be retained and would be
let go because of their technical ability. Blank added that if
Murray needed a reference, he would give him one.
Hession was also called into Blank’s office on that day.
Blank told Hession that Metro had hired him as service man-
ager and that he did not need the same number of employees
as Tri-Star employed. Therefore, he explained that he was
laying off three technicians based solely on technical ability,
and that Hession would not be retained. Blank added that he
needed 12 technicians that knew how to work on cars, and
that he (Hession) did not work on cars, so he was not one
of the people that Blank was keeping.
Hession then asked about the Union, and his seniority, and
if that counted for anything. Blank replied that he was not
considering seniority, since Tri-Star was going out of busi-
ness. He (Blank) was the service manager of Metro and was
hiring 12 people who can come in and work on cars.
Tri-Star had employed 60 employees in all departments.
Metro hired 50 former Tri-Star employees. Therefore in addi-
tion to not retaining Hession, Murray, Esmond, and Santoro,
Metro also did not rehire a payroll clerk, an office employee,
and several parts and sales department employees.
On Monday, August 17, the facility opened for business
under the name of Metro. Respondent commenced operations
using the same machinery, equipment, parts, and supplies as
was used by Tri-Star, and was engaged in the same type of
business, i.e., sale, lease, and service of new-and-used cars.
As noted, Metro hired 50 out of 60 of Tri-Star’s employees,
including 12 out of 15 bargaining unit employees, plus Tri-
Star’s service manager, Mickey Blank.
On August 17, Hession called Otero and informed him
that Respondent had terminated Hession and Murray, as well
as Tom Santoro (the nonunit part-time porter). Otero replied
that he would try to speak with Siegel, but advised Hession
to file a grievance, and have Murray file a grievance as well.
Otero called Siegel on August 18. Otero asked Siegel if he
had terminated Hession and Murray. Siegel replied that he
hadn’t fired anyone, he just didn’t hire the two people. Siegel
added that Mickey Blank had given Siegel a list of who he
needed, and these two were not on the list. Otero asked
Siegel if he would put Murray and Hession back to work.
Siegel said no.
173METRO TOYOTA
12 This was the first collective-bargaining agreement executed be-
tween Local 355 and any of Don Lia’s dealerships.
Otero asked Siegel if Respondent intended to honor or rec-
ognize the Union’s contract. Siegel responded that Respond-
ent did not have to recognize the contract, because the con-
tract had been set aside by the bankruptcy court, prior to the
closing. Otero concluded the conversation by stating that he
would speak to his lawyer.
Also on or about August 18, Hession came to the facility
with a written grievance to present to Blank. The grievance
which was dated August 18, states that Hession wants his job
back because he ‘‘was laid off out of rotation.’’ Hession
asked Blank for a written response. Blank replied that he
needed some time to prepare a response and asked Hession
to come back in a few days.
Several days later, Hession returned and asked Blank for
a written response. Blank answered that he had spoken to his
superiors at Metro, and been instructed that since Hession
was never a Metro employee, it never let him go, and need
not file a response to Hession’s grievance.
In early September, Murray submitted a written grievance
to Blank dated September 1 and asked for a reply. The griev-
ance asserted that he was laid off on August 19 despite his
long years of service. Blank responded to Murray as he had
to Hession, that Metro was now the employer and because
Tri-Star is out of business, no reply is necessary.
On August 20, Otero, on behalf of the Union, sent a letter
to Respondent by certified mail. The letter confirms the con-
versation between Siegel and Otero, wherein Siegel agreed to
abide by the contract with the Union, but with certain modi-
fications. Otero asserted the willingness of the Union to meet
with Respondent to discuss any modifications of the contract,
and suggested a proposed meeting date. Siegel denied ever
seeing this letter before the instant proceedings.
The Union was unable to produce the green card or any
other post office receipt for this letter. Testimony was how-
ever, adduced from the Union’s office manager that the cleri-
cal employee who mailed the letter kept certified receipts in
a box on her desk, and that when the Union moved its office
in August 1993, this clerical employee discarded a large
number of green cards from her desk. The office manager
however, could not testify about which green cards were dis-
carded, or whether a green card evidencing Respondent’s re-
ceipt of the August 20 letter was included among those cards
that the employee discarded.
Respondent never replied to the Union’s August 20 letter.
On August 31, the Union filed the instant charge, alleging
that Respondent violated Section 8(a)(1), (3), and (5) of the
Act, including an allegation that Respondent refused to rec-
ognize and bargain with the Union as an alter ego and/or
successor to Tri-Star. Shortly thereafter, according to Siegel,
several employees came to him and stated that they had
heard that the Union filed an unfair labor practice charge,
and asked Siegel if it was true and what effect does it have
on the employees. Siegel responded that, as far as he was
concerned, the bankruptcy court set aside the contract with
Local 447 and ‘‘there is no Union.’’ The employees then re-
sponded, according to Siegel, that they didn’t ‘‘want Local
447 here.’’ Siegel, on cross-examination, conceded that in his
view the setting aside of the Tri-Star contract by the bank-
ruptcy court meant that Metro would no longer have to deal
with Local 447, and that the Union was no longer on the
scene. Siegel further elaborated that he refused Otero’s re-
quest to honor the contract, because ‘‘Local 447 had no con-
tract with Metro. They, therefore, no longer represented the
men because Metro had nothing to do with 447. Metro never
had anything to do with 447.’’
Also in late August, Hession testified that he made another
visit to Metro’s facility to discuss conversion of his health
insurance. According to Hession, he had another conversa-
tion with Blank at that time. Hession asserts that he asked
Blank what kind of recommendation he would give him.
Hession claims that Blank responded that he would give
Hession ‘‘two for one.’’ When asked what he meant, Hession
asserts that Blank responded, ‘‘I will give you and John
Otero.’’
Blank unequivocally denies making this statement or any-
thing like it to Hession and denies ever personally discussing
recommendations with Hession. Blank testified, however,
that Respondent did make attempts to place all three of the
employees whom it did not retain at other jobs. As for
Hession, Blank testified that one of his service writers, Jeff
Chippendale, arranged with a Pontiac dealer that needed a
‘‘go-for,’’ and someone who can do P.D.I. work, to inter-
view Hession. It was reported to Blank that Hession had spo-
ken to the Pontiac dealer who was interested in hiring
Hession, but that Hession had not returned the Pontiac deal-
er’s calls.
Hession, on rebuttal, denied having any conversations with
Blank about obtaining a job at any Pontiac or any other deal-
ership. Interestingly, Hession did not deny having a discus-
sion with other representatives of Metro about a job at an-
other dealership, nor that he in fact interviewed at a Pontiac
dealership, as a result of conversations with any representa-
tives of Respondent.
On November 19, Joseph Pecora, a business agent for
United Service Workers of America, Local 355 (Local 355),
visited the facility. He spoke to the technicians during their
lunch hour and solicited authorization cards from them. He
received most of the cards back signed by the employees on
that date and a few several days later. Respondent introduced
into the record 12 signed authorization cards, allegedly from
employees of Respondent. Ten were dated November 19, one
was undated, and one was dated November 23. Thereafter,
Local 355 sent a telegram to Respondent demanding recogni-
tion. Subsequently, a meeting was held in late November be-
tween Pecora, Siegel, and Larry Milman, Respondent’s attor-
ney. Pecora produced the cards that he had obtained and as-
serted that his Union was the majority representative of Re-
spondent’s employees, and he wished to negotiate a collec-
tive-bargaining agreement with Respondent on behalf of the
men. Siegel looked at the 12 cards, saw that they were all
names of Respondent’s employees, and satisfied himself that
Local 355 represented a majority of employees. Siegel then
agreed to recognize Local 355 and to meet to negotiate a col-
lective-bargaining agreement.
As a result of negotiations between the parties, a collec-
tive-bargaining agreement was executed on January 1, 1993,
by Pecora and Don Lia12 on behalf of Respondent, which by
its terms was effective from January 1, 1993, to December
31, 1995. The parties on February 19 executed a modifica-
tion of that collective-bargaining agreement, which made cer-
tain changes in the existing contract.
174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 It is noteworthy that Otero furnished no testimony as to this in-
cident.
Blank testified credibly, without contradiction, that after
Respondent took over the operation, with a staff of 12 tech-
nicians, the amount of ‘‘unapplied time’’ for technicians dis-
appeared.
III. ANALYSIS
A. The Alleged 8(a)(3) Violations
Whether Respondent’s decision not to retain Hession and
Murray is violative of Section 8(a)(1) and (3) of the Act
must be evaluated under the standards of Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transpor-
tation Management Corp., 462 U.S. 393 (1983).
The General Counsel has the initial burden of establishing
by a preponderance of the evidence that protected conduct
was a motivating factor in Respondent’s decision. If the Gen-
eral Counsel satisfies that burden, the burden of proof then
shifts to Respondent to establish that it would have taken the
same action, absent the protected conduct of the alleged
discriminatees.
I am not persuaded that the General Counsel has adduced
sufficiently probative evidence to meet its initial burden of
proof that protected activities of either Hession or Murray
were motivating factors in Respondent’s decision not to re-
tain them as employees.
While Hession was the shop steward for Tri-Star, and Re-
spondent is charged with this knowledge, in view of the fact
that Blank, Tri-Star’s service manager, made the decision for
Respondent on which Tri-Star employees it would retain,
Weco Cleaning Specialists, 308 NLRB 310 (1992); Kings-
wood Services, 302 NLRB 247, 255 (1991), Hession’s activi-
ties as shop steward were minimal. Thus, Hession never filed
a grievance either with Crabtree or Tri-Star on behalf of the
employees that he represented in all of his years as shop
steward, since 1980. More significantly, the only grievance
filed by employees where he became directly involved was
in 1980, when Blank was not employed and when Crabtree
was the employer. Indeed, Hession conceded in his testimony
that relations between management and the Union had al-
ways been very good during his tenure as shop steward.
The General Counsel in this connection relies on
Hession’s testimony concerning Tri-Star’s attempt to elimi-
nate making medical payments in December 1991. At that
time Hession protested Tri-Star’s announced intention to do
so, and complained about the matter to Otero, who eventu-
ally apparently persuaded Tri-Star that their contract did not
permit such action.13 I find the General Counsel’s reliance
on this incident to be misplaced. Initially, I note that Blank
credibly denied that he was aware of this incident, and the
General Counsel adduced no evidence that Blank knew about
either Tri-Star’s intent to eliminate medical benefits or the
role of Hession or the Union in persuading Tri-Star not to
do so. Moreover, even if one were to impute knowledge of
these events to Blank, the Union’s assistant shop steward,
Sacarella, also complained to management of Tri-Star about
the proposed reduction in benefits, and he was retained by
Respondent. Thus if Respondent, by Blank, was motivated
by these protected activities not to retain Hession, it would
be logical that it would also have taken similar action against
Sacarella, particularly where as here, it also failed to retain
another employee, Murray who engaged in no union activi-
ties whatsoever. Additionally, this incident took place in De-
cember 1991, 8 months before Respondent’s decision not to
hire Hession. This in my view is too remote in time from
the alleged discriminatory conduct to permit an inference that
this protected conduct was a motivating factor in Respond-
ent’s August 1992 actions, especially in the absence of any
evidence of animus by Respondent or by Blank toward
Hession’s activities in this regard.
The General Counsel also relies on a more current inci-
dent, the July 1992 decision of Tri-Star to eliminate dental
benefits. The General Counsel points to the fact that Otero
in his July 13 conversation with Siegel complained about the
fact that dental benefits had been terminated. Therefore, Gen-
eral Counsel argues that at that point it became clear to Re-
spondent that the Union would not be a pushover and would
defend the interest of employees, and that it knew that
Hession as the shop steward was the ‘‘point man’’ for the
Union in the shop. I find the General Counsel’s contentions
in this regard to be speculative, unwarranted, and not sup-
ported by the record evidence.
While it is true that employees of Tri-Star did complain
to Blank and to Otero about the loss of their dental benefits,
there is no evidence whatsoever in the record that Hession,
or Murray for that matter, was among those who complained
to either Otero or Blank. More importantly, Blank himself
was adversely affected by and upset about the loss of dental
coverage, and he himself complained about the loss of cov-
erage (for himself as well as the employees) to Chuck Wilk
of Tri-Star. Therefore, I find it inconceivable that Blank who
himself was upset about the loss of dental coverage, would
somehow retaliate against Hession for his allegedly perceived
but unproven role in enlisting Otero’s support for the em-
ployees on this issue.
Thus, the General Counsel had adduced no evidence of
any current or significant protected conduct engaged in by
Hession or Murray, which might lead to the inference that
such activity motivated Respondent’s decision not to retain
them.
The General Counsel’s evidence of animus is similarly
unimpressive. While Respondent was not exactly candid with
the Union as to its intentions to honor the collective-bargain-
ing agreement between the Union and Tri-Star, I cannot find
that this conduct, even if it can be characterized as the Gen-
eral Counsel asserts as ‘‘deception,’’ is sufficient to warrant
the inference that its hiring decisions were affected. I note
that it is undisputed that Respondent left all hiring decisions,
including the number and particular individuals to be re-
tained, entirely in the hands of Blank. There is no record evi-
dence that Blank was involved in or ever became aware of
Respondent’s ‘‘deceptive’’ conduct with regard to the con-
tract, and I find it highly unlikely that he would have had
such knowledge. Moreover, in fact Respondent hired 12
former Tri-Star employees who were all represented by the
Union, and staffed its entire complement of technicians with
such employees. Therefore, I cannot conclude that Respond-
ent’s deception in dealing with the Union constitutes suffi-
cient evidence of animus to infer that the decision not to re-
tain Hession or Murray was motivated by unlawful consider-
ations.
175METRO TOYOTA
14 Indeed, normally employers do not file for bankruptcy unless
they are in financial difficulty.
Finally, the General Counsel relies on Hession’s testimony
that subsequent to the refusal to hire, Blank in a discussion
with Hession about a reference, agreed to give Hession two
references, one for him and one for Otero. Blank credibly
and unequivocally denies making such a statement, and I
tend to believe Blank’s denial that he made such a remark.
I found Blank to be a most credible and candid witness
throughout most of his testimony. I note that at the time of
the trial he was no longer employed by Respondent and was
therefore the only witness who testified here who had no di-
rect interest in the outcome of this proceeding. It also ap-
peared to me that Blank was sincerely attempting to recount
his recollection of events, without regard to whether or not
such recollection would be adverse to Respondent’s case. I
note in this regard his candid admission that he did assure
employees that they all would be retained by Respondent,
even though he knew at the time that this was not the case.
Additionally, he also conceded that although he had reviewed
Murray’s personnel file and was aware of several warning
notices appearing therein, he did not consider these warnings
in his decision not to retain Murray. Clearly, Respondent in-
troduced these warnings in an attempt to bolster its conten-
tion that Murray was an unsatisfactory employee at Tri-Star,
and it would have been easy for Blank to testify that these
warnings were a factor in his assessment of Murray’s per-
formance. He did not do so, however, which convinces me
even more that he was testifying truthfully about the basis
for his selection of Hession and Murray as employees not to
be retained.
Also, I carefully observed Blank while he was testifying,
and I could see the anguish on his face when he testified
about the ‘‘tossing and turning’’ in his sleep while he was
making the final difficult decision to let go three employees.
I found him to be most believable when he testified that it
was not an easy decision for him to make because he had
worked with these employees for many years, he himself had
been out of work in the past, and it was not easy for him
to tell someone to go home and tell their wife not to buy
groceries.
Accordingly, for the above reasons, I credit Blank’s testi-
mony with respect to the alleged statement attributed to him
by Hession, as well as with respect to Blank’s testimony
concerning his reasons for not retaining Murray and Hession.
Moreover, I also agree with Respondent that the alleged
statement of Blank, even if credited, is too ambiguous to
warrant the conclusion that it evidences significant antiunion
animus. The remark can just as easily, as Respondent argues,
be construed as a promise to supply an additional reference
to Otero on behalf of Hession, so that Otero can use it to
assist Hession in his search for work. This interpretation is
in fact strengthened by the credited testimony of Blank that
Respondent did in fact make efforts to assist all three em-
ployees whom it did not retain, including Hession, to obtain
other employment.
Therefore, I conclude that the General Counsel has not
presented any evidence that Hession engaged in any current
union activities of which Respondent was aware, or that Re-
spondent has any animus towards any protected conduct of
Hession. While Respondent was aware that Hession was the
shop steward for the Union, and Respondent did engage in
some deceptive conduct toward the Union, I do not find that
these events, singly or collectively, are sufficient to draw an
inference that Respondent’s hiring decisions were motivated
in any way by such facts. I also reemphasize that Respondent
hired 12 former Tri-Star employees, who were represented
by the Union, including Assistant Shop Steward Sacarella,
who engaged in the same union activities as Hession, insofar
as this record discloses. Thus, I do not believe that the Gen-
eral Counsel has established that any real or perceived pro-
tected conduct of Hession played any role in Respondent’s
decision not to retain him as an employee.
The General Counsel’s case with respect to Murray is
even less persuasive. Admittedly, Murray was not a shop
steward, held no other union position, and engaged in no
protected conduct whatsoever. The General Counsel argues,
however, that Murray was chosen to be laid off to ‘‘cover
up’’ Respondent’s unlawful discrimination against Hession,
even though Murray himself engaged in no such union ac-
tivities. Jack August Enterprises, 232 NLRB 881, 898, 900
(1977).
Since I however, have found above that the General Coun-
sel has not met its burden of establishing that any protected
conduct of Hession was a motivating factor in Respondent’s
decision not to retain him, it follows that its ‘‘cover up’’
contention with respect to Murray’s status must also meet a
similar fate. Accordingly, I also conclude that the General
Counsel has failed to prove that any protected conduct of
Murray or of Hession played any role in Respondent’s deci-
sion not to retain Murray as an employee.
Assuming arguendo that I were to conclude that the Gen-
eral Counsel has established that protected conduct were mo-
tivating factors in Respondent’s decision with respect to the
retention of Hession and Murray, I would find that Respond-
ent has met its burden of establishing that it would have
taken the same action absent the protected activities in-
volved. Wright Line, supra.
While the General Counsel is correct that Respondent ad-
duced no records to establish its contention that financial
losses motivated its decision to reduce its staff of techni-
cians, I do not find this failure to be significant, particularly
in view of the mutually corroborating and credible testimony
of Siegel and Blank that they both concluded that Tri-Star
was overstaffed with technicians. Moreover, I note that Tri-
Star was in bankruptcy, was losing substantial amounts of
money,14 and that in addition to not retaining Hession and
Murray, Respondent also failed to retain eight other former
Tri-Star employees in various positions, including another
bargaining unit employee, whom the General Counsel has
not alleged to be a discriminatee.
Moreover, Blank’s credible and unrefuted testimony estab-
lishes that the amount of ‘‘unapplied time’’ for technicians
disappeared at some point after Respondent began operating
with three fewer technicians.
With respect to the specific decision not to retain Hession
or Murray, I find that Respondent has persuasively estab-
lished that the selection was made based on Blank’s evalua-
tion of the technical abilities of these employees. While the
General Counsel relies on the fact that Hession and Murray
were the two most senior technicians, I note that Respondent
as a new employer had no obligation, even as a successor
to Tri-Star, to follow the seniority clause in the contract be-
176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 It is significant in this regard that Blank also let go Santoro,
who as noted had much more seniority than Hession, and whose em-
ployment with Tri-Star had also been requested by Crabtree, and
agreed to by Tri-Star, when the dealership was purchased by Tri-
Star.
tween Tri-Star and the Union. NLRB v. Burns International
Security Services, 406 NLRB 272 (1972). While Respondent
was somewhat deceptive in its dealing with the Union, it was
consistent and honest in informing the Union that it had
problems with the seniority clause in the contract. Moreover,
Respondent also failed to retain, based also on Blank’s deci-
sion, Tom Santoro who had over 50 years of seniority at the
facility, many more years of service than either Hession or
Murray. This action is fully supportive of Blank’s credible
testimony that his decision on which employees to retain was
based not on seniority, or union activities, but solely on his
assessment of which employees Respondent needed to oper-
ate efficiently.
In that connection, Blank’s unrefuted and believable testi-
mony establishes that Hession, although he was an ‘‘A’’ me-
chanic, was not performing and was not capable of perform-
ing skilled mechanics’ functions that such a classification re-
quires. Hession performed only unskilled P.D.I. work and oil
changes. It is noteworthy that Hession, although called as a
rebuttal witness on other matters, did not refute Blank’s testi-
mony on this point.
The General Counsel makes much of the fact that, al-
though Blank testified about his low opinion of Hession’s
skills, Blank never warned Hession about his performance or
reduced his classification to a B or C mechanic. This conduct
is effectively explained, however, by Blank’s unrefuted and
credible explanation as to the history of Hession’s employ-
ment. Thus, Hession was employed as a limo driver for
Crabtree’s owner for much of his tenure while employed by
Crabtree, and therefore lost touch with working on cars.
When Crabtree sold the business to Tri-Star, Watson, the
owner of Tri-Star, agreed to Crabtree’s request to retain
Hession, along with two other longtime Crabtree employees,
Santoro and Conley.
Thus, when Blank returned to work for Tri-Star as service
manager in January 1991, he questioned Tri-Star’s manage-
ment about what Hession was doing in the shop and why he
was classified as an ‘‘A’’ technician. Notwithstanding the
fact that Tri-Star officials explained to Blank the above-de-
scribed arrangement between Watson and Crabtree, Blank
made several recommendations during 1991 to his Tri-Star
superiors that Hession either be terminated or reduced in,
grade because he was not performing skilled mechanics
work, but his recommendations were not followed. At one
point, pursuant to a suggestion from a Tri-Star official, Blank
asked Hession to attend Toyota school to take courses in
brakes and suspensions in order to improve his skills.
Hession refused Blank’s offer, however, and agreed only to
attend school for P.D.I. work, which Toyota does not offer
and which would not in any event provide Hession with ex-
perience performing class A mechanics’ work.
Therefore, when Respondent entrusted the decision of
which and how many Tri-Star employees to retain to Blank,
Blank was not bound by Watson’s agreement with Crabtree
to keep Hession on and was free to use his own best judg-
ment about which employees were most qualified and most
needed.15 I conclude that Respondent has established that
Blank exercised such judgment by selecting those employees
who he felt were the most capable and most essential to op-
erate the service department.
While Blank did not testify as to any past dissatisfaction
on his part with Murray’s performance and, as noted by the
General Counsel, never warned Murray that his abilities were
not satisfactory, these facts do not detract significantly from
my conclusions set forth above with respect to Blank’s deci-
sion. I note initially that as I observed above, Murray’s case
is based on a ‘‘cover up’’ theory that he was chosen to be
laid off in order to mask the alleged discriminatory termi-
nation of Hession. Because I have concluded above that Re-
spondent has convincingly demonstrated that it did not retain
Hession, because Blank believed (based on unrefuted and
substantial evidence) that Hession was not a skilled me-
chanic, its burden of proof with respect to Murray is substan-
tially lessened. Indeed, absent a finding that Hession was
discriminatorily treated by Respondent, there is no basis in
this record for finding that Murray was unlawfully laid off
or not retained.
The General Counsel also relies on the wage increase that
Blank approved for Murray in January 1991, which Tri-
Star’s form characterized as a merit increase. I find, how-
ever, that Blank has adequately explained his actions in that
regard, because it is undisputed that Murray received this in-
crease only weeks after Blank returned to Tri-Star as service
manager. Thus, I believe Blank’s testimony that his decision
to recommend a raise for Murray was not based on any eval-
uation of his ability, but merely because Murray asked and
that Blank discovered that Murray had not received a raise
in the past 2 years, while everyone else in the shop had re-
ceived an increase during that period of time.
Therefore, I conclude that although Blank had never criti-
cized or warned Murray about his work performance, or rec-
ommended that he be terminated, that Blank believed as he
testified, that relative to the other technicians, Murray was on
the low end of the competency scale. Thus, once Blank de-
cided that Respondent could operate efficiently with 12 tech-
nicians, he was required to decide which 3 employees not to
retain. I am persuaded that he made such a decision after
consultation with his service writers, and after much soul
searching, based on his evaluation that Hession, Murray, and
the third unit employee, Esmond, were the least skilled tech-
nicians amongst Tri-Star’s employees.
Therefore, I conclude that Respondent would have met its
burden of establishing that it would have taken the same ac-
tion against Hession and Murray, absent any protected con-
duct, even if the General Counsel had met its initial burden
of proof. Accordingly, based on the foregoing, I find that the
General Counsel has not established that Respondent’s deci-
sion not to hire or retain Hession or Murray was motivated
by any protected conduct, and was not violative of Section
8(a)(1) and (3) of the Act. I shall therefore recommend dis-
missal of these allegations of the complaint.
B. The Alleged 8(a)(5) Violations
There can be little dispute that all the requisites for the es-
tablishment of an obligation on the part of Respondent to
recognize and bargain with the Union under the principles of
177METRO TOYOTA
16 The fact that Respondent acquired the assets of Tri-Star as a re-
sult of a bankruptcy proceeding does not change the applicability of
Burns principles. Derby Refining Co., 292 NLRB 1015 (1989).
Burns, supra, are present in the instant case. It is undisputed
that the Union has been the longtime collective-bargaining
representative of Tri-Star’s service shop employees, that Re-
spondent purchased the assets, facilities, equipment, and sup-
plies of Tri-Star, that Respondent continued to operate the
business of Tri-Star in essentially the same fashion, with no
hiatus in time, and that Respondent’s work force consisted
of a majority (in fact 100 percent) of former Tri-Star em-
ployees.16
The only requisite for establishing successorship that Re-
spondent disputes here is the requirement that the Union
make an appropriate demand for recognition. Respondent,
while conceding that the Union made at least two requests
that Respondent honor or recognize its collective-bargaining
agreement with Tri-Star, contends that such a demand is not
a proper demand for recognition. I do not agree.
A demand that a successor employer sign or honor a col-
lective-bargaining agreement executed by the predecessor
employer is a valid demand for recognition, because it con-
templates and subsumes a demand for recognition. Stanford
Realty Associates, 306 NLRB 1061, 1066 (1992); Sterling
Processing Corp., 291 NLRB 208, 217 (1988). This is par-
ticularly so when, as here, the Union indicates that it is will-
ing to be flexible and does not offer the contract on a take-
it-or-leave-it basis. Thus on July 13, Otero requested that
Siegel on behalf of Respondent honor and recognize the
Union’s contract. After Siegel tentatively agreed, but ex-
pressed reservations about the seniority clause, Otero replied
that he would be willing to negotiate something to help him
operate his business. Moreover, Siegel and Otero also dis-
cussed other terms and conditions of employment of the em-
ployees, such as vacation pay, a dental plan, as well as Re-
spondent’s plans to reinstitute a demo plan. In these cir-
cumstances, it is clear and I so find that the Union made an
appropriate demand for recognition on July 13.
On August 18, Otero made another demand that Respond-
ent honor or recognize the contract, in the course of the
Union’s protest to Respondent about its alleged termination
of Hession and Murray. This constitutes a second proper de-
mand for recognition by the Union. Stanford Realty, supra;
Sterling Processing, supra.
Finally, the instant charge, which was filed on August 31
and alleges a refusal to recognize and bargain with the Union
by the Union, is itself tantamount to a valid request for rec-
ognition. Sterling Processing, supra at 217; Stanford Realty,
supra at 1066.
While the General Counsel alleges that a fourth proper de-
mand for recognition was made in the Union’s letter of Au-
gust 20 to Respondent, I do not find it necessary to make
such a determination. Inasmuch as Respondent denies receipt
of this letter, and the Union has been unable to produce the
green card evidencing that Respondent received the docu-
ment, it is questionable whether or not sufficient evidence of
its receipt has been adduced by the General Counsel. Be-
cause I have already concluded that the Union made three
valid and appropriate demands for recognition, however, I
see no need to, and I shall not decide, whether in fact Re-
spondent received the Union’s August 20 letter.
Respondent also defends its admitted refusal to recognize
the Union on several other grounds. Initially, it contends that
Respondent had a good-faith belief that the Union abandoned
the shop. Respondent argues that the Union made no efforts
to collect dues or fund contributions, and that no grievances
or requests for arbitrations were filed by the Union, noting
particularly that Hession and Murray filed individual griev-
ances with Respondent concerning their alleged terminations.
It is undisputed, however, that Otero on behalf of these em-
ployees did protest to Respondent about the terminations of
Hession and Murray and advised Hession to file a grievance
over the matter. Once Siegel refused on August 18 to honor
the contract and told Otero that the bankruptcy court had set
aside the Union’s agreement, it is not surprising that the
Union did not thereafter file a grievance or request arbitra-
tion or make any efforts to collect dues or fund payments.
Indeed, Siegel admitted that, in his view, the setting aside of
the Union’s contract relieved Respondent of any bargaining
obligation he might have had toward the Union. Therefore,
Respondent’s assertion that the Union abandoned the shop is
totally unwarranted and provides no defense to its refusal to
recognize and bargain with the Union.
Respondent also contends that it is relieved of any obliga-
tion to bargain with the Union because of its subsequent al-
legedly lawful recognition of Local 355, which was sup-
ported by authorization cards signed by a majority of em-
ployees in the unit. It is interesting to note that while Re-
spondent vigorously pursued this theory at the trial and, in
fact, presented evidence, over the objection of the General
Counsel, of the circumstances of its recognition of Local
355, it made no reference to this purported defense in its
brief. This is probably because the General Counsel, after the
evidence was presented, asserted that as a remedy for the
8(a)(5) violation would be seeking to set aside Respondent’s
recognition of and contract with Local 355. Because the de-
fense has not been withdrawn by Respondent, however, I
shall consider it and reject it as being without merit.
The Union made three appropriate demands for recogni-
tion of Respondent months before Local 355 appeared on the
scene or obtained any authorization cards from employees of
Respondent. Therefore, by refusing to recognize and bargain
with the Union well before any employee dissatisfaction with
the Union surfaced, Respondent has undermined the Union’s
majority status and tainted any subsequent employee expres-
sions of disaffection with the Union’s representation of such
employees. Worcester Mfg., 306 NLRB 218, 220 (1992);
Sullivan Industries, 302 NLRB 144, 149 (1991); Manna Pro
Painters, 304 NLRB 782, 783, 788 (1991); Bay Area Mack,
293 NLRB 125, 131 (1989). See also Fall River Finishing
Co., 482 U.S. 27 (1987), where the Supreme Court observed:
Once it has been determined that an employer has un-
lawfully withheld recognition of an employees’ bargain-
ing representative, the employer cannot defend against
a remedial bargaining order by pointing to an interven-
ing loss of employee support for the union when such
loss of employee support is a foreseeable consequence
of the employer’s unfair labor practice. [482 U.S. at 51
fn. 18.]
While as detailed above, I agree with the General Coun-
sel’s assertions that NLRB law, of which I am bound, re-
178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 It is notable that the complaint does not allege that Respondent
had voluntarily agreed to recognize or subsequently withdrew rec-
ognition from the Union. Rather, it merely alleges a refusal to recog-
nize and bargain with the Union on and after July 13.
18 My analysis of Sullivan has been confirmed by the Board in
Williams Enterprises, 312 NLRB 937 (1993), where Sullivan was
distinguished similarly.
quires that Respondent’s purported defense of loss of major-
ity be rejected, I note that Sullivan, supra, on which the Gen-
eral Counsel has placed significant reliance, has been denied
enforcement and remanded to the Board in pertinent part by
the Court of Appeals for the D.C. Circuit in Sullivan Indus-
tries v. NLRB, 957 F.2d 890 (1992). In my view, however,
the instant case is distinguishable from Sullivan, and even
under the analysis of the court of appeals, would result in a
finding that the Respondent’s refusal to recognize the Union
tainted any subsequent loss of majority support as evidenced
by the execution of authorization cards by employees on be-
half of Local 355.
Thus the panel decision (Judge Silberman dissenting) dis-
approved of the Board appearing to apply a ‘‘per se’’ rule
that in a successorship situation, any refusal to recognize the
union that formerly represented the predecessor’s employees
taints any subsequent evidence of employee disaffection of
the union, regardless of the totality of the circumstances, and
without an examination of the factors that the Board nor-
mally relies on in determining whether a casual connection
exists between unfair labor practices and the union’s loss of
majority. Id. at 899, 900, 901. The court therefore remanded
the portion of the case that ordered the employer to bargain
with the union, to the Board to either explain whether it has
such a ‘‘per se’’ rule, and if so the reasons for it, or if not
to explain why the refusal to recognize the union therein had
a meaningful effect on employee support for the union and
thereby tainted the petition. Id. at 902.
The key distinguishing factor between the instant matter
and Sullivan supra, however, is the absence of any agreement
by Respondent here to recognize the Union. Thus, the court
in Sullivan emphasized the fact, that unlike Board precedent
such as Bay Area Mack, supra, and Manna Pro, supra, the
employer in Sullivan at all times acknowledged its obligation
to recognize and bargain with the union as soon as it reached
a representative complement of employees, and in fact actu-
ally did recognize the Union, albeit for only a day or two,
before the employee petition was received and the subse-
quent withdrawal of recognition. The opinion considered this
distinction quite significant, and suggested that it might be
reasonable to infer that in the context of a persistent refusal
to recognize a union, that the failure to recognize is the pre-
dominant factor in causing employee disaffection from the
union. Id. at 902 and 901.
While there is some evidence that Respondent tentatively
agreed to recognize the Union on July 13, when Siegel
agreed to honor the contract, except for the seniority clause,
I have found that Respondent never intended to recognize the
Union, and that Siegel made a tentative agreement only to
forestall possible union intervention in Tri-Star’s attempt to
set aside the union contract.17 Moreover, any doubts about
Respondent’s intentions were clearly demonstrated by
Siegel’s statements made on August 18 to Otero that the
Union’s contract with Tri-Star had been set aside, and
Siegel’s admission that, as a result, he considered the
Union’s status as bargaining agent for the employees to be
terminated. Indeed, Siegel communicated that position to
several employees shortly after the Union filed its charge on
August 31 when he told them that the court had set aside
the contract and ‘‘there is no Union.’’
Therefore, even under the court’s analysis, in Sullivan, Re-
spondent’s persistent refusal to recognize the Union for at
least a 3-month period was sufficient to taint the employees’
conduct in signing authorization cards for Local 355 in late
November.18 Accordingly, since I have rejected all of Re-
spondent’s defenses to its refusal to recognize and bargain
with the Union, I conclude that Respondent has violated Sec-
tion 8(a)(1) and (5) by its refusal to do so.
The General Counsel also alleges that Respondent’s rec-
ognition of Local 355 in November was violative of Section
8(a)(1) and (5) of the Act and that to remedy that violation,
it is appropriate to order Respondent to withdraw recognition
from Local 355 and cease giving effect to the collective-bar-
gaining agreement executed between Local 355 and Re-
spondent.
Respondent argues that in effect the General Counsel is
seeking to secure a finding that Respondent violated Section
8(a)(1) and (2) of the Act (and Local 355 Sec. 8(b)(1)(A)),
without amending the complaint to allege such violations,
and without affording due-process rights to Local 355, which
was not made a party to this proceeding.
While Respondent is correct that this conduct would be
violative of Section 8(a)(2) and/or Section 8(b)(1)(A), and is
normally litigated in that context, with notice to the assisted
Union, I agree with the General Counsel that I am not pre-
cluded from making such findings in an 8(a)(5) proceeding.
In U.S. Marine Co., 293 NLRB 669, 688 (1989), enfd. 916
F.2d 1183 (7th Cir. 1990), enfd. en banc 944 F.2d 1305 (7th
Cir. 1991), an employer found to be a successor under Burns
was found to have violated Section 8(a)(1) and (5) of the Act
by unlawfully recognizing and bargaining with the union rep-
resenting the predecessor’s employees. The employer therein
established a ‘‘Safety and Progress Committee,’’ which was
found to be an employer-dominated labor organization. The
administrative law judge found, affirmed by the Board with-
out comment, that despite the absence of an 8(a)(2) allega-
tion in the complaint, that the recognition of the committee
as the representative of its employees interfered with em-
ployees’ Section 7 rights, and was a violation of the employ-
er’s duty to bargain with the union in violation of Section
8(a)(1) and (5) of the Act.
As to Respondent’s due process arguments, despite the ab-
sence of an allegation in the complaint that this conduct vio-
lated the Act, the issue was fully litigated at the hearing, was
closely related to Respondent’s refusal to bargain, and, in
fact, it was Respondent who raised the matter as an affirma-
tive defense. Moreover, at the hearing Respondent was noti-
fied by the General Counsel after Respondent introduced evi-
dence concerning the recognition of Local 355 that it in-
tended to seek as a remedy for Respondent’s refusal to bar-
gain the setting aside of Respondent’s contract and bargain-
ing relationship with Local 355. In these circumstances, there
is clearly no prejudice to Respondent in finding such a viola-
tion or in issuing such a remedy. Pergament United Sales,
296 NLRB 333, 334–335 (1989).
179METRO TOYOTA
Due process concerns vis-a-vis Local 355 are, however,
more troublesome. In that connection, I note that Local 355
was not made a party in interest to this proceeding, not
served with the complaint, and more importantly was not no-
tified by the General Counsel that it intended to seek a rem-
edy that would result in Local 355’s contract and recognition
being set aside.
I expressed my concerns at the hearing over the General
Counsel’s failure to so notify Local 355, when it announced
its intention to seek a recession remedy, and requested that
the issue be briefed. While I am still of the opinion that the
better procedure would have been to either amend the com-
plaint and/or to notify Local 355 of the General Counsel’s
intention to seek to set aside its contract, on balance I agree
with the General Counsel that it is appropriate for me to
make a finding that Respondent violated Section 8(a)(5) by
recognizing and signing a contract with Local 355, and to
remedy such violation by setting aside these actions.
I note initially, in agreement with the General Counsel that
it is not always essential that any party adversely affected by
a Board decision be notified or made a party to NLRB pro-
ceedings. See, for example, Fibreboard Paper Products v.
NLRB, 379 U.S. 203 (1964), and R.L. Sweet Lumber Co.,
227 NLRB 1084, 1089 (1977), where the Board ordered em-
ployers to abrogate contracts with a subcontractor, even
though the subcontractor was not made a party to and did
not participate in the Board proceedings.
Moreover, I note that this proceeding was adjourned for a
10-day period so that Joseph Pecora, Local 355’s business
agent, could be present to testify. Thus, it is apparent that
Respondent’s counsel had contacted Local 355 and Pecora to
determine his availability, and in fact Respondent called
Pecora as a witness at the resumption of the hearing on No-
vember 19, 1993.
Since Pecora testified concerning Respondent’s recognition
of Local 355 and their execution of a collective-bargaining
agreement, I conclude that Pecora knew or at least should
have known that its status as bargaining agent for Respond-
ent’s employees was in issue and could have been adversely
affected by this proceeding. Therefore, Local 355 could have
chosen to make a motion to intervene in this proceeding to
protect its interests in keeping its collective-bargaining agree-
ment in force. Local 355 chose not to do so, however, appar-
ently relying on Respondent to assert and protect their com-
mon interest in sustaining their collective-bargaining relation-
ship.
Additionally, I also agree with the General Counsel that no
prejudice has been demonstrated to Local 355, by the failure
to notify it, since no contention has been made, that it was
precluded from adducing any relevant evidence, which might
have protected its status. Indeed, all the relevant evidence
with respect to the recognition of Local 355 was litigated,
and my findings that the recognition was unlawful was based
solely on events that transpired in July and August, over 3
months before Local 355 appeared on the scene. Therefore,
it is unlikely, if not inconceivable, that Local 355 could ad-
duce any evidence that might change the result herein.
Finally, even absent an affirmative order to set aside Re-
spondent’s collective-bargaining relationship, such a result
would be mandated by an order to bargain with Local 447,
which is an appropriate and necessary remedy for the 8(a)(5)
violation which was included in the complaint. Thus, Re-
spondent cannot lawfully continue recognizing Local 355
while at the same time recognizing and bargaining with
Local 447 as the representative for the same employees. It
is noteworthy that in U.S. Marine, supra, the respondent em-
ployer was ordered to cease and desist from recognizing the
dominated union, notwithstanding the fact that it does not ap-
pear that the ‘‘Safety Committee’’ had been made party to
or notified about the proceeding.
Accordingly, based on all the above circumstances, I con-
clude that the failure of the General Counsel to either make
Local 355 a party to the case, or to notify it that their status
as bargaining agent for Respondent’s employees was in
issue, does not violate Local 355’s due-process rights, and
does not preclude me from affirmatively ordering Respond-
ent to terminate their collective-bargaining relationship.
I therefore conclude that Respondent’s conduct in rec-
ognizing and signing a collective-bargaining agreement with
Local 355 in November interfered with its obligation to rec-
ognize and bargain with Local 447, and is violative of Sec-
tion 8(a)(1) and (5) of the Act. U.S. Marine, supra, and can
be remedied by an order to cease and desist recognizing
Local 355, and to set aside their collective-bargaining agree-
ment.
The General Counsel also alleges that Respondent has vio-
lated Section 8(a)(1) and (5) of the Act by refusing to bar-
gain with Local 447 over its decision and the effects of the
refusal to retain Hession and Murray as employees. In that
connection, the General Counsel argues that Respondent’s
decision not to retain these employees, although technically
a refusal to hire, was really more akin to a decision to reduce
the size of the unit and to lay off employees, subjects over
which it must bargain with the Union. Lapeer Foundry &
Machine, 289 NLRB 952 (1988); Challenge Cook Bros., 288
NLRB 387, 401 (1988). I agree.
While neither Hession nor Murray was ever on Respond-
ent’s payroll, in view of the circumstances surrounding its
assertion of control over Tri-Star’s operations, I conclude
that Respondent’s actions are more properly considered as a
layoff or reduction in unit size. Respondent continued Tri-
Star’s operation without change and without a hiatus. More
significantly, by the time Blank made the decision not to re-
tain Murray and Hession on August 13, Respondent was
fully in control of the facility. The contract was executed,
amended, and approved by the bankruptcy court, all relevant
licenses had been obtained, and the closing was scheduled
for August 17. Moreover, Respondent’s representative,
Siegel, had been at the premises on a full-time basis for 3
months. Even more importantly, Blank, who as noted made
the decision as to which and how many employees of Tri-
Star Respondent would retain, referred to the action as a lay-
off, when he solicited the opinion of his service writers, and
when he informed Hession, Murray, and Esmond of Re-
spondent’s decision.
Characterizing Respondent’s decision not to retain the em-
ployees as a layoff or a reduction in size of the unit however
doesn’t end the inquiry. The more important question is
when the bargaining obligation of Respondent attached.
While generally in a successorship situation, the bargaining
obligation arises when the new employer commences oper-
ations at the new facility and reaches a representative capac-
ity, Fall River, supra, in certain circumstances a bargaining
obligation may arise prior to employees being hired, ‘‘where
180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
it is perfectly clear that the new employer, plans to retain all
of the employees in the unit.’’ Burns, supra. The Board has
applied this rationale to successorship situations, where the
successor employer planned to hire a majority rather than all
of the predecessor’s employees, Helnick Corp., 301 NLRB
128, 134 (1991), particularly where as here, the successor
employer had exerted significant amounts of control over the
operations of the predecessor prior to actually transferring
employees to its payroll. AJR Coating Co., 292 NLRB 148,
168 (1988); Sorrento Hotel, 266 NLRB 350, 356–357
(1983).
The General Counsel argues that Respondent’s bargaining
obligation attached on July 13, when the Union made its first
demand. The General Counsel asserts that Respondent was a
legally viable entity by that date. Thus, Respondent had en-
tered into a purchase agreement with Tri-Star, which had
been approved by the bankruptcy court, and all relevant li-
censes had been obtained by Respondent to operate the deal-
ership. Moreover, Respondent had already informed Blank
that it would be retaining him as service manager when it
took over. Additionally, Siegel had been at the facility on a
full-time basis for over 2 months. I agree with the General
Counsel that Siegel’s testimony that he was there only as an
‘‘observer’’ at the insistence of the bank is not convincing.
Indeed, even Siegel’s own testimonial admissions reveal that
he exercised a much more significant managerial role during
this interim period of time before the closing. Siegel con-
ceded that he was there to ‘‘make sure that things were taken
care of on a day to day basis,’’ and to make sure that ‘‘what-
ever financial policies could be put in place to at least limit
the loss that would take place.’’ Siegel also admitted that the
bank ‘‘just wanted to know that an automobile person was
there conducting business the way an automobile dealership
should operate, not that it was haphazard.’’ Also Siegel was
paid by Respondent, reported regularly to Lia on his observa-
tions, and had no contact or communications with the bank.
Finally, when Otero came to the premises on July 13 to dis-
cuss the dental plan, Blank directed him to Siegel as the new
owner to discuss the problem. Siegel talked with Otero in
what had formerly been the office of Tri-Star’s vice presi-
dent, informed Otero that Respondent would be taking over
the dealership, and discussed with Otero whether or not Re-
spondent would honor the Union’s contract with Tri-Star, as
well as other terms and conditions of employment of the unit
employees.
Based on the above circumstances, I agree with the Gen-
eral Counsel that Respondent by July 13 was a viable entity,
exercising de facto control over the facility, and was suffi-
ciently viable to make labor relations decisions. Thus, the
Union’s demand was not premature. Williams Enterprises,
301 NLRB 167 (1991), enfd. denied and remanded in part
but on other grounds 956 F.2d 1226 (D.C. Cir. 1992); cf.
Freemont Ford, 289 NLRB 1290 (1988).
I however, do not agree with the General Counsel that Re-
spondent’s bargaining obligation attached on July 13, be-
cause the record does not establish that it had either decided
to or informed employees that it would be hiring a majority
of Tri-Star’s employees by that date. I do agree with the
General Counsel’s alternative contention that the bargaining
obligation attached in early August, after the discussion be-
tween Blank and Siegel, and Blank’s meeting with employ-
ees. Thus, Siegel informed Blank at that time that the closing
was scheduled for August 17, and confirmed his intention to
retain Blank as service manager. As a result of their discus-
sion, it was clear that as of that date, Respondent had con-
cluded that 12 former Tri-Star technicians would be retained,
and Blank would decide which employees to keep. Shortly
thereafter, Blank met with the bargaining unit employees and
informed them that Respondent would be purchasing the
dealership, and that all employees would be retained, and ev-
erything including all benefits would be the same. After that
conversation, I conclude that Respondent’s bargaining obliga-
tion attached. Helnick, supra; AJR Coating, supra.
Respondent argues that no reliance should be placed on
Blank’s statements to employees about their being hired,
since he was allegedly acting on the instructions of Watson,
a Tri-Star official, in order to keep up the morale of employ-
ees so that they did not quit their jobs. While it is true, as
Respondent argues, that the record does not establish that
Blank spoke to the employees with Respondent’s specific au-
thorization, it is clear that as of that time Respondent had
hired Blank as service manager and authorized him to make
all decisions on the hiring of employees. In such cir-
cumstances, Respondent is responsible for Blank’s statements
and actions concerning the hiring of employees. Weco Clean-
ing, supra, 308 NLRB at 315. Moreover, I note that the same
considerations and factors which allegedly motivated Watson
to assure employees as to their status would inure to the ben-
efit of Respondent. Respondent intended to fill its entire shop
with Tri-Star employees, so it would obviously be in Re-
spondent’s interest to assure employees of their continued
employment, so that they did not quit and accept other posi-
tions, because of fears that a new ownership would not retain
them. Finally, even apart from Blank’s statements to employ-
ees, Blank’s conversation with Siegel in itself, made ‘‘it per-
fectly clear’’ that Respondent intended to hire a majority of
unit employees from Tri-Star. Burns, supra.
Accordingly, I conclude that as of early August, Respond-
ent was obligated to bargain with the Union as the collective-
bargaining representative of its employees. As I have detailed
above, the decision to lay off employees or to eliminate unit
positions are mandatory subjects of bargaining, concerning
which Respondent provide must give notice to and bargain
with the Union concerning both the decision and the effects
of such decisions. Lapeer, supra; Challenge-Cook, supra. See
also Plastonics, Inc., 312 NLRB 1045 (1993); Tuskeegee
Area Transportation System, 308 NLRB 251, 252 (1991);
Consolidated Printers, 305 NLRB 1061 (1992). Since Re-
spondent’s decision to lay off Hession and Murray was not
made until August 13, well after its bargaining obligation at-
tached, the failure to notify and bargain with the Union is
violative of the Act. I note that the layoffs here were in vio-
lation of Tri-Star’s longstanding practice, as set forth in its
collective-bargaining agreement, of laying off by seniority.
Thus, this action was particularly susceptible to the collec-
tive-bargaining process, and the Union was entitled to the
opportunity to present alternatives to Respondent’s decision
to lay off employees and/or to do so without any consider-
ation of seniority.
The fact that I have found above that Respondent’s deci-
sion to lay off Hession and Murray was not based on dis-
criminatory considerations in violation of Section 8(a)(1) and
(3), and was made essentially for economic reasons, has no
effect on Respondent’s obligation to bargain with the Union
181METRO TOYOTA
19 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
about these matters. As the General Counsel argues, the
Union may have been willing to sacrifice wage increases or
some other benefits, in order to save employees’ jobs. There-
fore, I conclude that by terminating Hession and Murray
without consulting with the Union, and without having
agreed on a procedure for layoffs, Respondent has refused to
bargain with the Union in violation of Section 8(a)(1) and (5)
of the Act.
Lapeer, supra; Plastonics, supra. See also Kirby’s Res-
taurant, 295 NLRB 897, 901 (1989). Successor forfeited its
rights to set initial terms and violated Section 8(a)(1) and (5)
by unilaterally eliminating past seniority credit.
Finally, it can be alternatively argued that by Blank’s an-
nouncement to the employees (which included the shop stew-
ard for the Union) that all of them would be hired without
any changes in benefits, Respondent made a commitment to
hire all employees or at least not to change existing seniority
procedures, which commitment is binding, regardless of
whether Respondent was obligated to assume the terms of
Tri-Star’s contract. Double A Coal Co., 307 NLRB 689 fn.
2 (1992).
CONCLUSIONS OF LAW
1. Respondent N.R. Automotive, Inc., d/b/a Metro Toyota
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. Local Lodge 447, District Lodge 15, International Asso-
ciation of Machinists & Aerospace Workers, AFL–CIO is a
labor organization within the meaning of Section 2(5) of the
Act.
3. Since on or about August 1992, the Union has been the
exclusive collective-bargaining representative of Respond-
ent’s employees in the following appropriate unit with re-
spect to rates of pay, wages, hours, and other terms and con-
ditions of employment.
The unit is:
All service shop employees (service technicians) em-
ployed by Respondent at its facility at 47 Cedar Street,
New Rochelle, New York, excluding office clerical em-
ployees, new and used car salesmen, guards, watchmen,
parts department employees, professional employees,
and supervisors as defined by the Act.
4. By refusing to recognize and bargain with the Union on
or after August 1992, by refusing to notify and bargain with
the Union concerning its decision to lay off employees James
Hession and Leonard Murray, and to reduce the size of the
bargaining unit, and the effects of such decisions, and by its
recognition of and signing a collective-bargaining agreement
with United Service Workers of America, Local 355, Re-
spondent has violated Section 8(a)(1) and (5) of the Act.
5. Respondent’s termination of Hession and Murray was
not violative of Section 8(a)(3) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has violated Section 8(a)(1)
and (5) of the Act, I shall order that it cease and desist there-
from and take certain affirmative action designed to effec-
tuate the policies of the Act.
I shall order Respondent to bargain on request with the
Union concerning terms and conditions of employment of its
employees, including Respondent’s decision to lay off Mur-
ray and Hession and to reduce unit size, as well as the ef-
fects of such decisions. With respect to Hession and Murray
I shall recommend that Respondent reinstate them to their
former positions of employment and make them whole by
paying them backpay from the dates of their layoff (August
17) until Respondent offers them reinstatement or until they
have secured substantially equivalent employment elsewhere.
Lapeer, supra at 955. Backpay shall be computed in the man-
ner set forth in F. W. Woolworth Co., 90 NLRB 389 (1950),
with interest in the manner prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
As noted above, I find it appropriate to recommend that
Respondent withdraw recognition from Local 355, and cease
and desist from maintaining or enforcing any terms of the
collective-bargaining agreement in effect between Respond-
ent and Local 355. Nothing in my recommended Order how-
ever shall be construed to require Respondent to vary or
abandon any wage increases or other benefits or terms and
conditions of employment that it has established in perform-
ance of the agreement. Jayar Metal Finishing Co., 297
NLRB 603 (1990).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended19
ORDER
The Respondent, N.R. Automotive, Inc., d/b/a Metro Toy-
ota, New Rochelle, New York, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain with Local Lodge
447, District Lodge 15, International Association of Machin-
ists & Aerospace Workers, AFL–CIO (Local 447) as the col-
lective-bargaining representative of its employees in the ap-
propriate unit described below:
All service shop employees, service technicians em-
ployed by Respondent at its facility at 47 Cedar Street,
New Rochelle, New York, excluding office clerical em-
ployees, new and used car salesmen, guards, watchmen,
parts department employees, professional employees
and supervisors as defined in the Act.
(b) Refusing to notify and bargain with Local 447 con-
cerning its decision to lay off employees and to reduce the
size of the unit and the effects of these decisions.
(c) Recognizing or bargaining with United Service Work-
ers of America, Local 355 (Local 355) as the collective-bar-
gaining representative of its employees in the above-de-
scribed unit, unless and until Local 355 is certified by the
NLRB as the exclusive collective-bargaining representative
of an appropriate unit of its employees.
(d) Maintaining or giving any force or effect to its bar-
gaining agreement with Local 355, or to any modifications
extensions, or renewals thereof; provided, however, that
182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 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.’’
nothing in this Order shall be construed to require the Re-
spondent to vary or abandon any wage increases or other
benefits or terms and conditions of employment that it has
established in performance of the agreement.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, recognize and bargain with Local 447 as
the exclusive representative of the employees in the unit set
forth above concerning terms and conditions of employment
and, if an understanding is reached, embody the understand-
ing in a signed agreement.
(b) On request, bargain with Local 447 concerning Re-
spondent’s decision to reduce the size of the bargaining unit
and to lay off employees James Hession and Leonard Murray
as well as the effects of these decisions.
(c) Reinstate and make whole employees James Hession
and Leonard Murray for any loss of pay or other employ-
ment benefits suffered as a result of its unlawful conduct in
the manner set forth in the remedy portion of this decision.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at its facility in New Rochelle, New York, copies
of the attached notice marked ‘‘Appendix.’’20 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 2, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt 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.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that all violations alleged in the
complaint, but not found, are dismissed.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to recognize and bargain with Local
Lodge 447, District Lodge 15, International Association of
Machinists and Aerospace Workers, AFL–CIO (Local 447)
as the exclusive collective-bargaining representative of our
employees in the appropriate unit described below:
All service shop employees (service technicians) em-
ployed by us at our facility at 47 Cedar Street, New
Rochelle, New York, excluding office clerical employ-
ees, new and used car salesmen, guards, watchmen,
parts department employees, professional employees
and supervisors as defined in the Act.
WE WILL NOT refuse to notify and bargain with Local 447
concerning our decision to lay off employees and to reduce
the size of the unit and the effects of these decisions.
WE WILL NOT recognize or bargain with United Service
Workers of America, Local 355 (Local 355) as the collec-
tive-bargaining representative of our employees in the above-
described unit, unless and until Local 355 is certified by the
NLRB as the exclusive collective-bargaining representative
of an appropriate unit of our employees.
WE WILL NOT maintain or give any force or effect to our
bargaining agreement with Local 355, or to any modifica-
tions, extensions, or renewals thereof; provided, however,
that nothing be construed to require us or abandon any wage
increases or other benefits or terms and conditions of em-
ployment that we have established in performance of the
agreement.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL, on request, recognize and bargain with Local
447 as the exclusive representative of our employees in the
unit set forth above concerning terms and conditions of em-
ployment and, if an understanding is reached, embody the
understanding in a signed agreement.
WE WILL on request, bargain with Local 447 concerning
our decision to reduce the size of the bargaining unit and to
lay off employees James Hession and Leonard Murray, as
well as the effects of these decisions.
WE WILL reinstate and make whole employees James
Hession and Leonard Murray for any loss of pay or other
employment benefits suffered as a result of our unlawful
conduct plus interest.
N.R. AUTOMOTIVE, INC., D/B/A METRO
TOYOTA