Paramus Ford, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jan 31, 2007

22-CA-027444 (N.L.R.B. Jan. 31, 2007)

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Paramus, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
PARAMUS FORD, INC.
and Case No. 22-CA-27444
LOCAL 355, UNITED SERVICE
WORKERS UNION, IUJAT, AFL-CIO
Marguerite R. Greenfield, Esq.,
Newark, NJ, for the General Counsel.
Frank J. Peterpaul and Luanne M. Peterpaul, Esqs.
(Peterpaul, Clark & Corcoran, PC), Springfield, NJ,
for the Respondent.
Richard M. Greenspan, PC, Elmsford, NY
for the Union.
DECISION
Statement of the Case
STEVEN DAVIS, Administrative Law Judge: Based on a charge filed on June 13,
2006, by Local 355, United Service Workers Union, IUJAT, AFL-CIO (Union), a complaint was
issued against Paramus Ford, Inc. (Respondent or Paramus Ford) on August 22, 2006.1 The
complaint alleges essentially that the Respondent is the successor employer to Pistilli Ford, Inc.
and has failed to recognize and bargain with the Union in a unit of service and parts department
employees notwithstanding that the Union was the representative of Pistilli’s unit employees and
had a collective-bargaining agreement with Pistilli. The Respondent’s answer denied the
material allegations of the complaint and on October 31 a hearing was held before me in
Newark, New Jersey.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following:2
Findings of Fact
I. Jurisdiction
The Respondent, a corporation having an office and place of business in Paramus, New
Jersey, has been engaged in the sale and servicing of new and used motor vehicles and related
parts and services.

1 All dates hereafter are in 2006 unless otherwise stated.
2 General Counsel filed a reply brief. The General Counsel also filed a motion to exclude
Respondent’s Exhibit 4. The motion has been included in the record as G.C. Exhibit 14. I grant
the motion essentially for the reasons set forth in the General Counsel’s motion.
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The complaint alleges that based on a projection of its operations since on or about
February 6, at which time the Respondent commenced its operations, the Respondent in
conducting its business operations will annually derive gross revenues in excess of $500,000,
and will annually purchase and receive at its Paramus facility, goods valued in excess of
$50,000 directly from points outside New Jersey. The answer admits those allegations except
that it denies that at the commencement of its operations the Respondent derived revenues in
excess of $500,000 or purchased goods in excess of $50,000 directly from out of state sources.
The financial statement for February, 2006 states that the Respondent’s gross sales that month
were $1,582,962. It appears that a vehicle dealership such as the Respondent easily meets the
jurisdictional requirements alleged.
I find that the Respondent is an employer engaged in commerce within the meaning of
Section 2(2), (6) and (7) of the Act. The Respondent admits and I find that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. The Facts
1. The Start of Operations
Pistilli Ford operated the facility at 365 Route 17, East Paramus which comprised a Ford
dealership including a showroom, service facility and body shop.
On February 6, the Respondent made an “asset purchase” of Pistilli in which the
Respondent acted as a partnership or joint venture between the Ford Motor Company (FMC)
and Stephen Selman, a principal of All American Ford, a nearby dealership.
The purchase agreement provided that the Respondent agreed to buy all of the new and
unused vehicles of Pistilli for approximately $2 million, its goodwill valued at $3 million, and its
machinery and shop equipment, furniture, signs and office equipment valued at $271,000. Pistilli
agreed to transfer its service records, shop repair orders, and lists of employees. It was also
agreed that the Respondent would not assume Pistilli’s collective-bargaining agreement with the
Union, or the employment of any of Pistilli’s employees. The Respondent solicited business
from former Pistilli customers for whom it had e-mail addresses, and serviced vehicles brought
in by Pistilli’s customers who had problems with the work done by Pistilli.
James Sabino, the All American Ford service director stated that Pistilli’s customer
records, including their names, addresses and vehicles were transferred to the Respondent’s
records. Richard Selman, the brother of Stephen Selman and a principal in All American Ford,
denied that Pistilli provided any customer lists. I credit Sabino who was intimately involved with
the transfer and, as service director, would be aware that Pistilli’s customer records would be
shifted to the Respondent.
At the time of the purchase, FMC’s ownership interest in the Respondent was 80% and
Stephen Selman’s was 20%, but, pursuant to the dealer development program, it is expected
that ultimately Selman will buy out FMC’s interest.3 In addition to his interest in the Respondent,
and his ownership of All American Ford which is located about three miles away in Hackensack,

3 This is a typical arrangement undertaken by FMC. Fremont Ford, 289 NLRB 1290, 1291
(1988).
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New Jersey, Selman also owns Great American Chevrolet.
The premises of the Respondent is owned by the Pistilli family, and is leased to the
Respondent. Paramus Ford has the same phone number as Pistilli but not the same fax
numbers. The facility contains a showroom, a service facility and an auto body shop. Pistilli
formerly operated all three parts of the business at the facility. The Respondent continues to
operate the showroom and the service shop, but it discontinued the body shop operated by
Pistilli. Instead, the Respondent leased that space to an entity called Paramus Auto Body in
which Stephen Selman has a 10% interest. Paramus Auto Body performs work for the
Respondent and outside customers. Sabino stated that the Respondent’s suppliers are different
than those used by Pistilli. The Respondent uses the same suppliers used at All American Ford.
Such suppliers include garbage removal, janitorial supplies, uniform supply, vending machines,
and shop equipment rentals for oxygen used for cutting and welding.
2. The Demand for Bargaining
For at least 13 years, the Union represented a unit of service department, parts
department, and body shop employees at Pistilli Ford. The last collective-bargaining agreement
ran from July, 2004 to June, 2007. The contractual unit included, in the service department,
seven service technicians, one apprentice technician, one detail employee and one lot
attendant. The parts department was comprised of the assistant parts manager, one
counterperson, and one parts department driver. The body shop included two body shop
employees. The Pistilli unit of service department, parts department and body shop employees
totaled fifteen employees. The unit excluded guards and supervisors as defined in the Act.
John Ames, the Union’s president, testified that upon hearing a rumor of a change in
ownership of the Paramus facility, he spoke with the owner of Pistilli and then her attorney, and
faxed the following letters on February 2 to FMC and All American Ford, respectively:
To FMC
Re: Bargaining Demand and Information Request
Local 355, USWU, IUJAT (“Union”) has been the exclusive
bargaining representative under the National Labor Relations Act
for employees employed by Pistilli Ford. It is our understanding
that Ford Motor Corp has taken over, or is in the process of taking
over the dealership. As successor, the Union expects that your
firm will employee [sic] all employees currently represented by the
Union and maintain the current terms and conditions of
employment.
If we are incorrect in our assumptions, please contact the
undersigned immediately.
-------------------------------------------------------------------------------------
To Mr. Steven Selman
All American Ford
Re: Pistilli Ford
As you know we represent the service technicians at Pistilli Ford.
We are advised that the employees have submitted employment
applications to you anticipating that they are being hired when you
take over the dealership.
I am further advised that employees have not been notified of their
date to report to work.
Please supply the undersigned, as the representative of these
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employees, detailed information as to the date they will be
employed by your firm and if there are any employees that are not
being retained the basis therefore.
Your prompt attention to this matter is required in the event the
current dealership closes on Friday, February 3, 2006.
Cc: Ford Motor Corp (via fax), District & National Offices.
Ames received no reply to his letters. Ames gave uncontradicted testimony that on
February 16, he visited the Respondent’s premises and asked someone who did not identify
himself, to speak to Stephen Selman. Selman was unavailable. Ames asked to speak to
someone in charge and a man came forward and greeted him. He also did not identify himself.
Ames gave him his business card and requested recognition as the bargaining representative of
the service department employees. The unidentified man said that he would have to speak to
Selman’s attorney and asked Ames to leave and not return.
In this respect I do not credit Ames. “A trier of fact need not accept uncontradicted
testimony as true if it contains improbabilities or if there are reasonable grounds for concluding
that it is false.” Operative Plasterers, Local 394, 207 NLRB 147, 147 (1973). Ames’ testimony
concerning his visit was devoid of any details concerning his alleged conversations. There was
no testimony that he asked for the names, titles, or business cards of the men he spoke to, he
did not describe their physical appearance, and he sent no follow-up letter to the Respondent
confirming his alleged conversations that day. The General Counsel’s reliance on LB & B
Associates, Inc., 346 NLRB No. 92, fn. 17 (2006), Doug Wilson Enterprises, 334 NLRB 394, 397
(2001), and GM Electrics, 323 NLRB 125, 125 (1997), is misplaced. In each of those cases, a
named individual with specific duties was found to be an agent of the employer. Here, the only
evidence that Ames spoke to an agent of the Respondent was that someone addressed him
pursuant to his request to speak to “someone in charge.” There is no evidence that the
Respondent placed anyone in a position who could be viewed as an agent. Without sufficient
evidence as to who he spoke to, I cannot find that Ames had a reasonable belief that the
Respondent authorized this unidentified man to act in its behalf.
Paragraph 13 of the complaint alleges that between February 2 and February 16, the
Union, both orally and in writing requested that the Respondent recognize and bargain
collectively with it as the exclusive collective-bargaining representative of the unit employees.
The Respondent’s answer “admits that it received a letter from the union as contained in
paragraph 13, but denies that the union is entitled to recognition.”
3. The Unit Employees
a. The Service Department
All American Ford service director James Sabino was present daily at Paramus Ford
during the first two weeks of its operation, assisting and getting the service department “up and
running.” Richard Salazar began as the service manager at the Respondent, but left after about
two or three weeks.4 Thereafter, because of the absence of a service manager for the following
two to three weeks, Sabino assigned All American Ford’s service manager Jason Hinderstein to
supervise at Paramus Ford on a day-to-day basis until the new manager was hired. New

4 The record was not clear as to whether Salazar had been employed by Pistilli. Sabino
testified that he hired Salazar who had Ford experience, and that the service operation at
Paramus Ford was “always under his responsibility.”
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manager Vincent Marchesani was recruited from Valley Ford.
Sabino testified that on February 6, he interviewed all the service department employees
who had previously been employed by Pistilli. He was interested in people with Ford vehicle
experience and he obtained their training records from FMC. Sabino offered positions to three
service technicians: Luis Alvelo, who was certified as a diesel technician, Anthony Campagna
and John Onofrey.5 All three had been employed by Pistilli. Sabino testified that he began the
service operation with only three technicians because there was no work to support more than
three and he did not know how much work the facility would receive in the future. In addition,
two lot attendants, Joanns Karaminas, who had previously worked at All American Ford, and
Den Duncan were hired.6
These employees began work on Wednesday, February 8 in the pay period ending
February 15. Sabino stated that during that first week ending Friday, February 10 they
performed no work on vehicles. Rather, they were reorganizing the shop, cleaning, discarding
items, dismantling broken equipment and painting. Four inoperable vehicle lifts were replaced
and three additional lifts were added to the seven other operable lifts, giving the facility 14 lifts,
all of which were in operation in mid March. In addition, new telephone, computer systems and
heating, ventilation and air conditioning systems were installed.
On Monday, February 13, the service department employees began work on vehicles
performing the same type of work they had previously done while employed by Pistilli. In fact,
Sabino and Selman testified that Pistilli’s customers who were unhappy with work performed by
that company returned their vehicles for further service by Paramus Ford. The Respondent
repaired those vehicles which needed minor adjustments or service, but referred vehicles
requiring major repairs to FMC. Accordingly, the Respondent’s employees who were formerly
employed by Pistilli actually worked on the same vehicles that they serviced while employed by
Pistilli.
Thereafter, in the weekly pay period ending March 8, technician Ozwal Pomaquiza was
hired after having been transferred from All American Ford. In the pay period ending March 29,
two technicians were hired, Daniel Martin, who was certified as a truck technician, and Frank
Kuehn, for a total of six technicians. Neither Martin nor Kuehn had been previously employed by
Pistilli. At the time of the hearing, seven technicians were employed, but Sabino stated that his
plan was to employ 10 or 11 technicians as soon as the work load demanded it.
Richard Selman is the brother of Stephen Selman and is the controller, principal, legal
counsel and truck manager at All American Ford. He stated that Pistilli was certified by the FMC
to sell and service only light duty trucks. It was not certified for medium duty, low cab forward
trucks or box trucks and none of its employees, including Alvelo had such certification.7 In
contrast, Paramus Ford obtained certification for all three classes of trucks in March, and
employed someone, whose name he did not know, who was capable of servicing them.

5 Onofrey’s name had been omitted from the Union’s list of members employed at Pistilli
which was received in evidence. However, it is clear that Onofrey had been employed by Pistilli
and was interviewed and hired by Sabino, as he testified. Sabino testified that Thomas Duncan
was hired as a technician, but his name does not appear on any payroll list received in
evidence.
6 The lot attendant’s position is traditionally part of the service department unit, and the lot
attendant at Pistilli was included in the contractual unit.
7 As set forth above, Sabino stated that Alvelo had diesel truck certification.
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Selman testified that if Paramus Ford was unable to service a truck it would be sent to
All American Ford, but later stated that he had no knowledge of any truck actually sent from
Paramus Ford to All American Ford. However, he stated that he knew that the mechanics from
All American Ford travel to Paramus Ford to work on trucks. In this connection he stated that
“everything is really one single conglomerate.”
b. The Parts Department
David Schroter, the parts director at All American Ford, testified that he interviewed the
Pistilli parts department employees and, on about February 6, hired three: Dennis Hall, William
Miller and Eric Freuh. Hall had been the parts department manager at Pistilli, Miller was the
assistant parts department manager, and Freuh was a counterman/receiver.
Union agent Ames testified that Miller’s duties at Pistilli were that of parts/counterman.
During his employ, Pistilli changed his title to assistant manager but his duties remained the
same. Ames stated that it was decided that Miller would remain in the unit since his duties did
not include the ability to hire, fire, discipline or recommend discipline. Schroter testified that
Miller, as the assistant parts department manager, spends 50% of his work time at the parts
counter, and also controls the inventory in the parts department, orders parts, administers the
return process, handles the cash sales log and reconciles cash at the end of the day.
Schroter stated that no parts department employee violated any company rules since
Paramus Ford began, and accordingly no disciplinary action was taken against anyone. He
noted that in the absence of the parts manager, the assistant parts manager, Miller, has the
same authority and responsibilities, including being in charge of the parts department. Miller is
alone in the parts department every other Saturday, and he and Hall alternate weekend work
with both sharing the manager’s duties.
Mario Sierra was hired in the payroll week ending March 15. He had not been previously
employed by Pistilli. Sierra worked as a porter/driver who works in the parts department or in
other departments. His initial assignment was to assist in the identification and return of parts
purchased by the Respondent from Pistilli but to be returned to FMC. He left his employment
after a few months and was not replaced. However, Schroter stated that Mr. Lavoreiro was hired
as a parts department driver in about April.
Schroter noted that two other Ford dealerships located nearby had recently closed which
resulted in an increase in the Respondent’s parts business. He anticipated that as the
Respondent’s business, especially the wholesale business increases, he would add additional
counter people and drivers in the period May to July, 2007. He noted that there was no fixed
date on which he expected to hire more parts department employees, but stated that in the eight
months that the Respondent was in operation, its business probably doubled, estimating that at
the close of February, 2006 the parts business was about $20,000 and at the time of the
hearing was about $67,000.
c. The Body Shop
As set forth above, when it took over the Pistilli operation, the Respondent discontinued
the dealership’s operation of a body shop at the Paramus Ford facility. Instead it leased its body
shop premises to an outside enterprise in which Stephen Selman has a 10% interest. The body
shop, which has about six employees, is separated from the service shop by a door. The locker
rooms and bathrooms that the service and parts department employees use are located in the
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body shop.
d. Other Employees
Pistilli employed one detail employee who cleaned new vehicles before delivery. In
contrast, at Paramus Ford, no service department employees perform detail work. Rather, such
work is done by the outside detail company used at All American Ford. The clerical, payroll and
administrative departments at Pistilli were moved to All American Ford.
The names Den Duncan, Jasmin Hayek, Nellie Hutchinson, Jennifer Ryback, and Sandy
Mortar appear on the payroll for the week ending February 15. Service director Sabino identified
Duncan as a lot attendant, Hayek and Hutchinson as service department cashiers, and Rybak
and perhaps Mortar as service advisors/writers who write repair orders based on customer
requests for service.8 The service advisors’ desks are in the service department separated by a
glass wall from the technicians’ shop. Their uniforms are similar to Sabino’s – a blue shirt and
dress pants. The technicians wear mechanics’ uniforms. Sabino stated that his goal is to hire a
third service advisor as the work load requires. There is one warranty clerk who processes
warranty claims for payment to the FMC and deals with the technicians, service advisors and
service manager.
4. Repair Orders and Income in the Months
After the Respondent Opened
The Respondent received 162 repair orders in February, 325 in March and 269 in April,
2006. Sabino stated, and the figures confirm that the number of repair orders increased
monthly. For the month of February, the Respondent’s adjusted selling gross, the “bottom line”
figure for the service department only was minus $4307.00, the March figure was $22,407, and
April was $38,257.9 In his pre-trial affidavit, Sabino stated that the Respondent achieved normal
operations in April measured by a steady flow and increase in business which the figures
confirmed. As a comparison, in September, 2006, the number of repair orders was 288 and the
selling adjusted gross was $34,667.
5. The Respondent’s Reorganization Plans
Stephen Selman signed a contract with an $800,000 deposit on April 11 to purchase a
vacant warehouse in Hackensack, New Jersey, which is about three miles from Paramus Ford.
The closing on the property is scheduled for January 8, 2007. Selman’s plan is to use that
property as a “mega-service complex” which would house the service and parts departments of
the entities in which he has an interest: Paramus Ford, All American Ford, and Great American
Chevrolet. Accordingly, all the service technicians at the Respondent’s premises will be moved
to the new Hackensack facility. The body shop currently at Paramus Ford will remain there.
FMC and the General Motors Corporation have approved the new location. Work has
begun on the site at which two dozen trees and two underground gasoline tanks were removed.
Certain environmental issues must be resolved such as the removal of one more underground

8 The term service advisor and service writer were used interchangeably and will be referred
to as service advisors.
9 The March, 2006 figures were not offered in evidence but the amounts for that month may
be computed from the February and April monthly and “year to date” figures for both the repair
orders and adjusted selling gross.
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tank and the removal of soil contaminated with hydraulic fluid. Selman has spoken to
contractors and engaged an architect who presented the plans to a committee of the
Hackensack planning board and obtained preliminary approval for the planned use of the
property. That committee must present the proposal to the full planning board for final approval,
which Selman expected to obtain in December. Selman estimated that it would take 30 to 60
days following the closing in order to conclude its planning for the configuration of the building,
and then work would be done on the interior of the building and completed shortly thereafter.
Sabino testified that it would take 60 to 90 days to move the operations to the new facility.
Sabino testified that the new service facility is expected to have 100 work stalls or lifts
and employ more than 40 technicians just to service the two Ford dealerships.
Under the new project, the Respondent’s Paramus Ford location would be used as a
new and used car sales facility, and its showroom would house about 25 cars.10 It would also
have a facility for cleaning the cars for delivery and providing “light” oil changes. Sabino stated
that he told service manager Vincent Marchesani about these plans but did not personally tell
any of the employees. Nevertheless, according to Sabino, blueprints of the planned changes
are displayed in the showroom and elsewhere.
III. Analysis and Discussion
A. The Successorship Issue
The test for determining successorship under NLRB v. Burns Security Services, 406
U.S. 272 (1972) is well established:
An employer, generally, succeeds to the collective-bargaining
obligation of a predecessor if a majority of its employees,
consisting of a “substantial and representative complement,” in an
appropriate bargaining unit are former employees of the
predecessor and if the similarities between the two operations
manifest a “‘substantial continuity’ between the enterprises.” Fall
River Dyeing Corp. v. NLRB, 482 U.S. 27, 41-43 (1987).
The Board will normally assess whether an employer is a successor as of the time a
union makes its demand for recognition and bargaining, provided the employer has already
hired a substantial and representative complement of employees. See MSK Corp., 341 NLRB
43, 44-45 (2004).
The Respondent places all of these factors in issue. It questions the appropriateness of
the unit, whether there was a substantial continuity between Pistilli and the Respondent,
whether the Union made a proper demand for bargaining, whether a substantial and
representative complement existed at the time the alleged demand was made in view of its
plans for expansion, and whether a majority of its employees had been employed by Pistilli
Ford.
I will first discuss whether the Pistilli unit remained appropriate.

10 An architectural drawing of the renovated Paramus Ford facility was prepared in January,
2006.
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B. The Appropriate Unit
1. The Unit in the Automobile Dealership Industry and
The Change in the Unit Upon the Purchase by the Respondent
Critical to a successorship finding is whether the bargaining unit of the predecessor
employer remains appropriate for the successor employer.
The Respondent challenges both the scope and the composition of the unit set forth in
the complaint which is claimed to be appropriate. That unit is “all service and parts department
employees” at Paramus Ford. As set forth above, the Union represented Pistilli’s employees for
the past 13 years in a unit of service department, parts department and body shop employees.
The unit sought by the Union and alleged in the complaint need not be the only or even
the most appropriate unit. All that is required is that the unit be an appropriate unit. Bartlett
Collins Co., 334 NLRB 484 (2001); Gregory Chevrolet, 258 NLRB 233, 238 (1981).
At the outset, I note that “it is settled that the employees in an automobile agency’s parts
and service departments constitute an appropriate bargaining unit….”Honda of San Diego, 254
NLRB 1248, 1263 (1981); Gregory Chevrolet, above; Diamond Motors, Inc., 212 NLRB 820, 829
(1974). Accordingly, the unit claimed is the unit traditionally found to be appropriate in this
industry.
The Respondent argues that inasmuch as the Pistilli unit included the body shop which
the Respondent discontinued, and since its operation includes the servicing of medium duty and
cab forward trucks which Pistilli never serviced, the unit has undergone such a profound change
that it cannot be found to be appropriate.
The Board has stated that “it is well established that the bargaining obligations
attendant to a finding of successorship are not defeated by the mere fact that only a portion of a
former union-represented operation is subject to a sale or transfer of a new owner, so long as
the unit employees in the conveyed portion constitute a separate appropriate unit and comprise
a majority of the unit under the new operation. M.S. Management Associates, Inc., 325 NLRB
1154, 1155 (1998). As set forth above, the unit at Paramus Ford constitutes a separate
appropriate unit consisting of the service and parts department – one that has been traditionally
found to be appropriate. In addition, a change in the scale of an operation must be extreme
before it will alter a finding of successorship. M.S. Management, above.
Here, the Respondent assumed the significant portion of Pistilli’s operation and
continued to operate it as a Ford sales and service facility. The main aspect, scope and function
of its facility remains an automobile dealership, as had been the case with Pistilli. The fact that it
does not operate a body shop and now services a different type of truck, is not sufficient to find
the unit inappropriate or defeat a finding of successorship.
Regarding the appropriateness of historical units, the Board’s longstanding policy is that
a “mere change in ownership should not uproot bargaining units that have enjoyed a history of
collective bargaining unless the units no longer conform reasonably well to other standards of
appropriateness.” The party challenging an historical unit bears the burden of showing that the
unit is no longer appropriate. The evidentiary burden is a heavy one. “Compelling
circumstances” are required to overcome the significance of bargaining history. Cadillac Asphalt
Paving Co., 349 NLRB No. 5, slip op. at 4 (2007).
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In this connection, I acknowledge that the historically recognized unit consisting of the
service department, parts departments and body shop did not remain intact after the takeover
by Respondent since it ceased operating a body shop. I note that the Pistilli unit consisted of 15
employees, only two of whom, Kumka (body technician) and Swietek (“body shop”) were body
shop workers. Accordingly, the elimination of the body shop resulted in the reduction of only two
unit employees. Accordingly, the issue remains “whether a historically recognized unit is no
longer appropriate.” Trident, above, at 739. The Respondent has not met its burden of proving
that the historical unit, as changed by the Respondent’s takeover, is no longer appropriate.
2. The Scope of the Unit
The Respondent argues that the appropriate unit must include the employees of All
American Ford as well as those of Paramus Ford, and accordingly asserts that Paramus Ford is
a joint employer with All American Ford due to their interrelationship and the transfer of
supervisors and employees between both entities.
In order to establish that two otherwise separate entities operate
jointly for the purposes of labor relations, there must be a showing
that the two employers “share or codetermine those matters
governing the essential terms and conditions of employment.” The
employer in question must meaningfully affect “matters relating to
the employment relationship such as hiring, firing, discipline,
supervision, and direction.” The determination of whether two
entities are joint employers “is essentially a factual issue.”
Riverdale Nursing Home, 317 NLRB 881, 882 (1995) (citations
omitted)
Apart from the testimony that the personnel policies and handbook in effect at All
American Ford were applied to the employees at Paramus Ford, and Selman’s conclusory
testimony that “everything is really one single conglomerate,” little other evidence was provided
in support of a finding that those two companies shared or codetermined the terms and
conditions of employment of their employees. It should be noted that there are separate
supervisors for the service department and for the parts department – a service department
manager and a parts department manager at the Respondent’s facility. There was no evidence
that those supervisors did not act independently of their superiors with respect to labor
relations.
I acknowledge that the directors of the service and parts departments at All American
Ford initially interviewed and hired the employees who would work at Paramus Ford but this
simply constituted the establishment of its start-up. There was no further evidence that those
directors determined the terms and conditions of employment of the employees of Paramus. I
further note that All American Ford transferred technicians and lot attendants from its facility to
Paramus Ford when it opened. However, at least in a single-facility context, the Board
“traditionally has not accorded significant weight to … transfers from an existing location to a
new facility.” Hilander Foods, 348 NLRB No. 82, slip op. at 5 (2006).
I also acknowledge that the clerical and administrative function for Paramus Ford was
moved to All American Ford, so to that extent there is centralized control of those functions.
However, there was no showing how that centralization affected the employees at Paramus
Ford. The testimony that certain trucks that could not be serviced at Paramus Ford were taken
to All American Ford for repair work which, on its own, had little effect on daily operations or
labor relations.
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3. The Composition of the Unit
The Respondent also argues that if a unit of service and parts department employees is
appropriate, all employees in those departments should be included in the unit, urging that the
service advisors and the warranty clerk who are part of the service department should also be
included. It cites R.H. Peters Chevrolet, 303 NLRB 791 (1991) in support of its argument. In that
case, the Board determined whether the service advisors had a community of interest with the
employees in the service department. The evidence established that the service advisors take
the same annual examination as the mechanics, assign work to the mechanics in the absence
of the service manager, ask mechanics to re-do work, and may ask a mechanic to work
overtime. Occasionally, a mechanic substitutes for a service advisor in the absence of the
advisor and service manager.
No such evidence is present in the instant case. At the hearing, the only evidence as to
the duties of the service advisor was that he greets the customer, writes the repair order and
works in proximity to the shop area. Such evidence is not sufficient to prove that the service
advisors had a community of interest with the other employees in the service department.
Although Union agent Ames stated that service advisors are included in some of the Union’s
contracts, they were always excluded from its contracts with Pistilli. Similarly, although the
Board has found that a warranty clerk is includible in a unit of service department employees,
Honda of San Diego, 254 NLRB at 1265, such a position has not historically been included in
the Pistilli unit.
I accordingly find and conclude that the service advisors and the warranty clerk are not
properly includible in a unit of service department and parts department employees.
The Respondent also argues that the Respondent’s assistant parts manager William
Miller is a statutory supervisor and must be excluded from the unit.
Section 2(11) of the Act defines a supervisor as:
Any individual having the authority, in the interest of the employer,
to hire, transfer, suspend, lay off, recall, promote, discharge,
assign, reward, or discipline other employees, or responsibly to
direct them, or to adjust their grievances, or effectively to
recommend such action, if in connection with the foregoing the
exercise of such authority is not of a merely routine or clerical
nature, but requires the use of independent judgment.
The legislative history of this section establishes that Congress sought to distinguish
between two classes of workers: true supervisors vested with “genuine management
prerogatives” and employees such as “straw bosses, lead men, and set-up men” who are
protected by the Act even though they perform “minor supervisory duties.” NLRB v. Bell
Aerospace Co., 416 U.S. 267, 280-281 (1974) (quoting S. Rep. No. 105, 80th Cong., 1st Sess.,
4) (1947). The Board has used caution “not to construe supervisory status too broadly because
the employee who is deemed a supervisor is denied rights which the Act is intended to protect.”
Chevron Shipping Co., 317 NLRB 379, 381 (1995).
The burden of proving supervisory authority is on the party asserting it, and such proof
must be established by a preponderance of the evidence. Oakwood Healthcare, Inc., 348 NLRB
No. 37, slip op. at 3 (2006); Dean & Deluca, 338 NLRB 1046, 1047 (2003). Purely conclusory
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evidence is not sufficient to establish supervisory status. The Board requires evidence that the
employee actually possesses the Section 2(11) authority at issue. Golden Crest Healthcare
Center, 348 NLRB No. 39, slip op. at 5 (2006).
It is clear that parts department manager Dennis Hall, who has been regarded by the
parties as a statutory supervisor, was in daily control of the operations of the parts department.
There was no clear evidence that assistant parts department manager Miller, who reported to
him, possessed or carried out any supervisory authority.
The only evidence of statutory authority suggested by the Respondent is that in the
absence of the parts manager, Miller has the same authority and responsibilities, including
being in charge of the parts department. However, evidence of Hall’s supervisory authority was
not presented at the hearing. Even assuming that Miller possessed Hall’s authority in his
absence, it was shown only that Hall was absent on alternate Saturdays at which time Miller
substituted for him. Indeed, it was testified that Miller was “alone” in the parts department on
Saturdays, which means that he had no one to supervise at those times.
In this regard it is significant that there was no evidence that the Employer consulted
Miller regarding its decision to hire counterperson Freuh even though Miller was his ostensible
supervisor while at Pistilli. Rather, Schroter, the parts director at All American Ford interviewed
and hired Freuh. Auto West Toyota, 284 NLRB 659 (1987).
Parts manager Hall was Miller’s direct supervisor and was at the premises every day
except alternate Saturdays. The parts department operated for more than one month, from
February 15 to March 15, with just one additional person, Freuh, the counterperson. One
additional counterperson, Sierra, was hired in March, and Lavorio, a driver, was hired in April.
Accordingly, it would be unlikely that there would be two statutory supervisors, Hall and Miller, to
supervise one person, Freuh, for one month, or even one or two additional persons, Sierra and
Lavorio, in the following two months.
In Auto West Toyota, above, at 659, the Board found that Mark Goularte, an automobile
dealership parts manager, was not a statutory supervisor. It noted that Goularte’s
responsibilities, which included maintaining and ordering an adequate supply of parts and
conducting the department’s inventory, were not evidence of his supervisory status as “such
activities are not included among the supervisory indicia of Section 2(11).” The Board further
noted that taking inventory was a “routine matter.” Goularte also spent 65 to 70% of his time
performing the same duties as the other parts department workers, including working as a
counterperson. Here, Miller spent 50% of his time as a counterperson. See Grimaldi Buick-Opel,
Inc., 202 NLRB 436, 442 (1973), where the Board found that an automobile dealership assistant
parts manager was not a statutory supervisor.
Miller’s duties were similar to those of Goularte. In addition to the above tasks, Miller
administers the return process, handles the cash sales log and reconciles cash at the end of the
day. Those duties do not confer supervisory status. Accordingly, based on the evidence
presented at the hearing, I cannot find that the Respondent has met its burden of proving that
Miller was a statutory supervisor. It has not been proven that Miller possessed any of the
statutory indicia of supervisory status, or that he exercised any such authority with the use of
independent judgment. I therefore find that William Miller was at all times a unit employee.
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I accordingly find and conclude that the unit set forth in the complaint is an appropriate
unit.
Having found that the Pistilli unit remained appropriate even with the elimination of the
body shop, the next questions are whether (a) there was substantial continuity in the
Respondent’s operations at the time that it took over Pistilli’s facility (b) a majority of the
Respondent’s employees were former Pistilli employees (c) the Respondent’s employees
constituted a substantial and representative complement and (d) a proper demand for
recognition and bargaining was made triggering an obligation to bargain.
C. The Substantial Continuity of the Operations
The determination whether a “substantial continuity” exists between the two companies
includes “whether the business of both employers is essentially the same; whether the
employees of the new company are doing the same jobs in the same working conditions under
the same supervisors; and whether the new entity has the same production process, produces
the same products, and basically has the same body of customers.” Fall River, above, at 43.
In Fall River, the Supreme Court emphasized that in reviewing the facts pertaining to a
successorship situation, the Board analyzes these factors primarily from the perspective of the
employees – whether “those employees who have been retained will understandably view their
job situations as essentially unaltered.” 482 U.S. at 43. Although each factor must be analyzed
separately the totality of the circumstances is determinative.
In Stewart Chevrolet, Inc., 262 NLRB 362, 364 (1982), the Board found substantial
continuity in a similar business as here. The successor employer opened its Chevrolet
dealership engaging in substantially the same business operations at the same location, selling
substantially the same product and services to the same customers as the predecessor prior to
the sale. See Fremont Ford, 289 NLRB 1290, 1295 (1988).
Here, the Respondent continued the operation of a Ford dealership at the same location
as Pistilli had operated, and after about one week’s hiatus, began operations selling, servicing
and providing parts for Ford vehicles. The Respondent performed work on certain of the
identical vehicles which had been serviced by Pistilli. The service and parts employees
employed by the Respondent who had been employed by Pistilli performed essentially the same
functions – they serviced vehicles using the same lifts and provided parts which were purchased
by the Respondent. The parts department supervisor formerly employed by Pistilli was retained
by the Respondent. The same classifications, service technician, lot attendant, and parts
counterman were employed by the Respondent as were employed by Pistilli. The operation was
essentially unchanged despite the fact that the Respondent serviced medium duty trucks
whereas Pistilli did not.
Although the body shop was eliminated, this change “did not alter the essential nature of
the employees’ jobs” because the service and parts department employees which contained the
overwhelming number of positions in the Pistilli unit and the only positions in the Paramus Ford
unit continued performing the same type of work that they had done, the servicing of vehicles,
when at Pistilli. Fall River, above, at 44. Indeed, the service department employees worked on,
and the parts department employees provided parts for some of the same vehicles at Paramus
Ford that they had worked on at Pistilli. The job classifications thus employed by the
Respondent which included the service and parts departments, remained the same as those
utilized by Pistilli. From the perspective of the employees it is clear that they viewed their job
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situation as essentially unaltered.
I accordingly find and conclude that Paramus Ford is the successor to Pistilli Ford.
Having found that the Respondent is the successor to Pistilli, I must find when the
Respondent’s bargaining obligation with the Union matured. The Respondent’s bargaining
obligation matured when two conditions were met. First, when the Respondent had hired a
substantial and representative complement of employees, a majority of whom had been unit
employees in a unit represented by the Union, and second, when the Union made an effective
demand for recognition. Cadillac Asphalt Paving, above, slip op. at 4. These two conditions
need not occur in any particular order. MSK Corp., 341 NLRB 43, 44 (2004).
D. Whether a Majority of the Respondent’s Employees were Former
Employees of Pistilli in a Substantial and Representative Complement of Employees
“Where a union demands recognition from a prospective successor employer before that
successor has hired a substantial and representative complement of employees, the union’s
demand is deemed to be a continuing one and the successor’s bargaining obligation matures
once it hires a substantial and representative employee complement.” MSK Corp., 341 NLRB
43, 44 (2004). A premature demand constitutes a continuing demand which triggers a
bargaining obligation when an employer opens for business. Fremont Ford, 289 NLRB 1290,
1295 (1988),
In Fall River, above at 52, the Supreme held that “the successor’s duty to bargain at the
‘substantial and representative complement’ date is triggered only when the union has made a
bargaining demand.” The Court approved of the Board’s “continuing demand” rule in a
successorship context. The Court also held that a union’s demand, made prematurely, before a
substantial and representative complement of employees has been employed, remains in force
until the moment when the employer attains such a complement.
As set forth above, the Union made a valid demand for bargaining on February 2. The
demand was made prematurely before the Respondent employed a substantial and
representative complement of employees. Accordingly the question is whether, and at what
time, such a complement was employed and whether, at that time, a majority of the
Respondent’s employees were formerly employed by Pistilli.
The substantial and representative complement rule fixes the “moment when the
determination as to the composition of the successor’s work force is to be made.” Fall River, at
47. This rule “represents an effort to balance the objective of insuring maximum employee
participation in the selection of a bargaining agent against the goal of permitting employees to
be represented as quickly as possible.” Fall River, above, at 47.
In Fall River, the Court explained that in deciding whether a “substantial and
representative complement” exists, the Board properly examines a number of factors including
(a) whether the job classifications designated for the operation were occupied or substantially
filled (b) whether the operation was in normal or substantially normal production (c) the size of
the complement on the date of normal or substantially normal production (d) the time expected
before a substantially larger complement would be at work and (e) the relative certainty of the
employer’s expected expansion. 482 U.S. 27, 48. In this connection, the Board has noted that
employees should not have to wait “months or years until the very last employee is on board”
while at the same time an election should not be delayed when “in a relatively short period the
employee complement is expected to multiply many times.” Clement-Blythe Companies, 182
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NLRB 502 (1970), cited in Fall River, 482 U.S. at 49, fn. 15.
Regarding the standard for determining whether an employer has hired a substantial and
representative complement of its workers, “the Board finds an existing complement to be
substantial and representative when approximately 30% of the eventual employee complement
is employed in 50% of the job classifications.” Shares, Inc., 343 NLRB 445 fn. 2 (2004). Under
this standard, a substantial and representative complement of employees was achieved upon
the opening of the Respondent’s business on February 8, and at the start of normal or
substantially normal operations on February 13. Thus, on that date, it employed seven unit
employees11 which constituted 63% of its total work complement of 11 as of the week ending
March 29.12 In addition, the original seven employees worked in four (technician, lot attendant,
assistant manager and parts counterman) of the Respondent’s six classifications (combination
parts employee and driver).
Sabino testified that the Respondent intended to hire 10 to 11 technicians based upon
anticipated increased business but at the time of the hearing 8½ months later only seven were
employed. In Foodbasket Partners, 344 NLRB No. 96, slip op. at 6 (2005), the Board found that
a representative complement of employees was employed where the employer operated its
stores for about two weeks, and the employer was uncertain of the number of employees
necessary to run the stores, its hiring outlook was based on an evaluation of store sales, and
was uncertain when, if ever, sales might justify the hiring of additional employees. “The
Respondent’s employment needs were contingent upon undeterminable future sales.”
Accordingly, it would be inappropriate to conclude that a finding of whether a substantial and
representative complement must be delayed until the Respondent hires additional technicians.
Similarly, such a finding should not also await the consummation of the Respondent’s
plans for a major change in its operations in which its unit employees would be transferred to a
new “mega-service” facility in Hackensack and combined there with the service and parts
departments of Selman’s two other dealerships. It should be noted that the contract for the
facility was signed in April, 2006, two months after the Respondent began operations at the
former Pistilli facility. At that time, the expectations of the employees were that they would
continue to work at the Paramus Ford location. In addition, the new operation is not expected to
commence until about March, 2007, more than one year after the employees began work at the
Respondent’s facility in Paramus. Delaying a finding of whether a substantial and representative
complement has been achieved based on this plan for expansion would be inappropriate.
In Fall River, when the employer had hired employees “in virtually all job classifications,
had hired at least fifty percent of those it would ultimately employ in the majority of those
classifications, and it employed a majority of the employees it would eventually employ when it
reached full complement” and had begun normal production, the employer had reached its
substantial and representative complement. Fall River, above, at 52. At that time a majority of
the successor’s employees were former employees of the predecessor, and a bargaining
obligation attached. The Court noted that although the employer intended to expand to two
shifts, such expansion was “contingent expressly upon the growth of the business” and
therefore that date was inappropriate as the date on which a representative complement would
be found.
In an expanded work force, the Board considers whether a union’s demand was

11 Alvelo, Campagna, Onofrey, Karaminas, Miller, Freuh and Duncan.
12 Those listed in the above footnote and Pomaquiza, Sierra, Martin and Kueh,
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premature. Considerations include an employer’s claim that it is not in full operation, an
insufficient number of the contemplated job classifications are filled, and there are not a
representative number of employees in a substantial number of the existing job classifications.
The Board considers the total number of employees contemplated, the substance of the
projected plans, the time until completion of those plans and whether the additional jobs merely
involve distinct operations rather than separate and distinct job classifications regarding skills
required of the workers. If the Board determines that no significantly different functions or skills
are required or the anticipated completion date is too distant or the projected plans are mere
speculation or conjecture it will find that a representative complement of employees has been
employed. Scroll Casual, 278 NLRB 10, 15 (1986).
Accordingly, the Respondent began normal or substantially normal operations on
Monday, February 13 when it began servicing Ford vehicles. This finding is supported by the
Respondent’s repair and financial records. Thus, as set forth above, 162 repair orders were
processed in February, 2006 when the operation was not operating for half that month. It thus
appears that if the Respondent was open for business during the entire month of February, 324
orders would have been processed. This figure compares favorably with the month of March, in
which 325 orders were processed. In April, 269 orders were processed.
Sabino stated that the Respondent achieved normal operations in April. Apparently this
was so even though fewer repair orders were received that month than in the month before.
This was an apparent reference to the adjusted selling gross which was $38,257 in April, and
only minus $4307 in February and $22,407 in March. Of course, the amount of money received
would vary depending on the type of work done. A more accurate measure of normality would
be the number of orders received, which remained high in March.
In the payroll week ending February 15, the Respondent employed three technicians,
two lot attendants, an assistant parts department manager and a parts counterman, a total of
seven unit employees.13 Of those seven, five were formerly employed by Pistilli and
represented by the Union. The Respondent continued to employ those same employees during
the following two weeks. Thus, in the payroll weeks ending February 22 and March 1, there was
no change in the employee complement.
In the next payroll period ending March 8, one employee, technician Pomaquiza was
added to the roster. He was not formerly employed by Pistilli, and thus the employee
complement consisted of five former employees of Pistilli in a unit of eight workers.
The following payroll week ending March 15, employee Sierra was hired for work in the
parts department. Inasmuch as he was not formerly employed by Pistilli, the unit consisted of 5
former Pistilli workers in a unit of nine employees.
Accordingly, for a one-month period from the start of the Respondent’s operations,
employees formerly employed by Pistilli represented a majority of the total unit at the
Respondent. As set forth above, beginning in the payroll week ending March 29 with the hire of
two service technicians, the former Pistilli workers no longer represented a majority of the
Respondent’s unit employees.
It should be noted that at the time of the hearing on October 31, 8½ months after the
Respondent began operating, seven service technicians were employed. The final three

13 Alvelo, Campagna, Onofrey, Karaminas, Miller, Freuh and Duncan.
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technicians were hired in the payroll week ending March 29. Four technicians had been
employed from February 15 through the week ending March 15.
I accordingly find and conclude that as of February 13, the Respondent employed a
substantial and representative complement of employees at the Paramus Ford facility, a
majority of whom in an appropriate unit had been formerly employed by Pistilli.
E. The Demand for Bargaining
“The critical date for determining the union’s majority status [as a successor employer] is
the date on which the request for bargaining is received by the employer.” Pre-Engineered
Building Products, Inc., 228 NLRB 841, fn. 1. (1977).
A valid request to bargain need not be made in any particular
form, or in haec verba, so long as the request clearly indicates a
desire to negotiate and bargain on behalf of the employees in the
appropriate unit concerning wages, hours, and other terms and
conditions of employment. Marysville Travelodge, 233 NLRB 527,
532 (1977).
As set forth above, the Union faxed letters on February 2 to FMC and to Selman at All
American Ford. I find that both letters, taken separately or together, constitute valid demands for
bargaining. The letters of February 2 constituted a demand for recognition and a continuing
demand for recognition and bargaining which matured into a bargaining obligation on February
8 when the Respondent employed a representative complement of unit employees. MSK Corp.,
341 NLRB 43, 45 (2004).
The fact that the letters were not addressed to the Respondent is irrelevant. At the time
the letters were sent the sale had not occurred and apparently the Union was not aware of the
name of the purchaser. Eldorado, 335 NLRB 952, 954 (2001). In finding a proper demand for
bargaining made to an individual who owned the successor but which did not name the
successor, the Board noted, as is equally applicable here, that the issue is not whether the
union “got the name of the business right, but whether the right person got the letter.” Here
Selman and FMC received the letters and no reply was made.
The letter to FMC is expressly entitled “bargaining demand and information request.”
The Union’s letter informs FMC that it is the exclusive bargaining representative of the
employees employed by Pistilli. It advises FMC, that “as successor” it expects that it will employ
all current employees represented by the Union and maintain the current terms and conditions
of employment.
The Union’s letter identifies FMC as the successor to Pistilli, and expressly demands
bargaining from FMC as the exclusive representative of the employees. Such a demand is
appropriate inasmuch as FMC is the 80% owner of the Respondent. Accordingly, the Union’s
letter to FMC operated as a clear and express demand for recognition and bargaining. The letter
also asks that FMC maintain the current terms and conditions of employment.14 The Board has
found an effective demand for bargaining where, among other things, a union has demanded
that a successor employer continue to pay the union benefits which the employees enjoyed

14 A request that a successor employer sign or honor a contract between the predecessor
and the union constitutes a valid demand for recognition. MSK Corp., 341 NLRB 43, 45 (2004)
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under the contract with the predecessor. Cadillac Asphalt Paving, above, slip op. at 5.
The letter to Selman advises him that the Union represents the service technicians at
Pistilli. The letter informs Selman that Ames had been informed that Pistilli’s workers have
submitted employment applications to him in anticipation of being hired when he assumes the
operation of the dealership. Ames asks Selman to provide him, as the employees’
representative, information as to the date they will be employed by his company, and the basis
for not hiring those not selected.
Although the terms “recognition” and “bargaining” are not contained in the letter to
Selman, such “magic words” are not necessary. MSK Corp., 341 NLRB 43, 45 (2004). The
combination of the Union’s identification of itself as the representative of the service technicians
and its request for information concerning the status of the employees’ applications for
employment and if any are not hired, the reasons therefore, contemplates that the Union is
seeking to bargain in behalf of the technicians over their hire.
In Eldorado, above, at 953, the union sent a letter addressed to “John Gavin, president
of Eldorado.” That company was the predecessor employer, but Gavin was the owner of the
successor company operating as J.C. Media Group. The letter did not expressly demand
recognition, but sought information as to what had occurred at the shop, the relationship
between the two businesses, which employees were still working and their terms and conditions
of employment at the new business. The letter stated that it was a grievance under the contract.
The Board found that a request for information is tantamount to a request for bargaining, and
that the letter indicated that the union was “seeking to fulfill its role as the exclusive bargaining
representative of the former Eldorado employees.” The Board concluded that the Union’s
demand “reasonably informed the Respondents that the Union considered the Respondents to
be a successor… and that the Union sought to represent the Respondents’ employees.”
Eldorado, above at 954.
The result should be the same here. The Union advised Selman that it represented the
employees at Pistilli and informed him that, despite completing job applications, the employees
had not been notified of their date to start work when he takes “over the dealership.” The Union,
as the employees’ representative, asked Selman for the status of the employees’ job
applications. In asking for information - that Selman provide the Union with reasons for not
hiring the employees it represents - the Union clearly suggests that it intends to bargain with
Selman concerning the reasons for his failure to hire such employees. In doing so, and in
inquiring about the status of the applications, the Union sought to fulfill its role as the
representative of the former Pistilli employees. Eldorado, above.
Where an employer, although denying that a union requested bargaining, conceded that
its agent said that he would see if he could obtain reinstatement for the employees or “do what
he could for them,” the Board held that this was a clear expression of intent to bargain in their
behalf. Marysville, above, at 533. Similarly, here the Union intervened in behalf of the former
Pistilli employees which it had represented in an effort to obtain their employment with the
successor employer. Thus the Union’s letter to Selman was also a clear expression of its intent
to bargain in their behalf. The Union’s requests “contemplate and subsume a demand for
recognition….” Stanford Realty Associates, 306 NLRB 1061, 1066 (1992).
In these circumstances, the Respondent “understood or reasonably should have
understood” that Ames was asking that the Respondent, as the prospective successor to Pistilli,
recognize the Union and bargain with it for a contract covering the unit employees. MSK Corp.,
341 NLRB 43, 45 (2004).
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The Union thereafter filed a charge against the Respondent which further demonstrates,
clarifies and reaffirms its request for recognition and bargaining.” Stanford, above, at 1066;
Eldorado, Inc., 335 NLRB 952, 954 (2001).
The Respondent argues that no clear demand was made by the Union in an appropriate
unit. The Union’s February 2 letter to FMC stated that it represented the “employees” employed
by Pistilli. The letter to Selman stated that it represented the “service technicians.” The unit
alleged to be appropriate in the complaint is “all service and parts department employees.” The
unit set forth in the contract between Pistilli and the Union is “all service, body shop and parts
department employees.”
The Board has held that although a union demanded bargaining in a different unit than
that set forth in the complaint, such a deviation was not sufficient to find that no proper demand
was made. In Hydrolines, Inc., 305 NLRB 416, 420 (1991), the Board stated:
[I]n a successorship situation, the union, by making a bargaining
demand, is attempting to preserve its status as the bargaining
representative of an already defined unit, or that portion of the
unit which has been conveyed or preserved. The successor,
however, may add employees. It may add, eliminate, or change
job classifications. It may have plans to expand or change its
operations. The union may be unaware, or at least uncertain, as to
the successor’s plans for its hiring and operations. Therefore, the
union’s bargaining demand may be made before it is clear which
of the successor’s employees belong in the unit, and the union
cannot be expected or required to take all possible contingencies
into account in making its demand to bargain.
The Board further stated that in the circumstances presented, “any fair reading of the
union’s demand letter requires the conclusion that the union sought to represent the
respondents’ employees….At the very least, the union’s demand shifted the burden to the
respondents to contact the union and seek clarification of the bargaining demand…. Any doubt
that the respondents had regarding the bargaining unit that the union had sought to represent
was removed when the complaint issued setting forth the unit alleged to be appropriate.”
Hydrolines, above, at 420 and 420 fn. 29.
Here, at the time the demand was made, before the purchase of Pistilli Ford, the Union
could not have been aware of the classifications of employees the Respondent would employ or
the type of work the Respondent would undertake. However, as in Hydrolines, the Union clearly
sought to preserve its status as the former employees’ representative, and also sought to
represent the Respondent’s employees. I accordingly find and conclude that on February 2, the
Union effectively demanded recognition and bargaining of the Respondent, and that the
Respondent made no reply thereto.
Conclusion
As set forth above, the Union made a valid although premature demand for recognition
on February 2. Six days later, on February 8, the Respondent hired former Pistilli employees in
the unit represented by the Union which at that time and continuing through March 29
constituted a majority of the Respondent’s employees. I have found above that the Pistilli unit
remained appropriate despite the fact that the body shop was no longer operated by the
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Respondent.
I have also found that there was substantial continuity in the operations of Pistilli and the
Respondent, as the Respondent continued to operate its predecessor’s facility as a Ford
dealership at the same location with a limited hiatus, using essentially the same equipment, with
the same parts department supervisor, and servicing Ford vehicles and in some instances the
identical vehicles serviced by the predecessor. The employees of the Respondent who were
former employees of Pistilli clearly would have viewed their job situations as “essentially
unaltered.” I have thus found that the Respondent is a successor to Pistilli Ford.
In addition, there was a substantial and representative employee complement on
February 13 since the job classifications were occupied or substantially filled and the
Respondent’s operation was in normal or substantially normal production.
Although the demand for bargaining was made prior to the hire of any employees, the
demand is a continuing demand which matured into a bargaining obligation on February 8 when
the Respondent employed a representative complement of unit employees or on February 13
upon the Respondent’s assumption of normal or substantially normal operations.
Accordingly, I find that the Respondent is the successor to Pistilli and was obligated to
recognize and bargain with the Union for its employees employed in the service department and
parts department. Inasmuch as the Respondent has not replied to the Union’s demands for
recognition and bargaining it has violated Section 8(a)(1) and (5) of the Act.
Conclusions of Law
1. The following employees constitute a unit appropriate for collective-bargianing within
the meaning of Section 9(b) of the Act:
All service and parts department employees employed by
Paramus Ford, excluding guards and supervisors as defined by
the National Labor Relations Act.
2. Since February 8, 2006, Local 355, United Service Workers Union, IUJAT, AFL-CIO
has been the exclusive collective-bargaining representative of the employees in the above unit.
3. By refusing to recognize and bargain with Local 355, United Service Workers Union,
IUJAT, AFL-CIO as the exclusive collective-bargaining representative of its employees in the
appropriate unit set forth above, the Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. I shall recommend that the Respondent be ordered to cease
and desist and to take certain affirmative action designed to effectuate the policies of the Act. As
I have found that the Respondent has illegally failed and refused to recognize and bargain with
the Union, I shall order the Respondent to recognize the Union as the exclusive collective-
bargaining representative of its employees in the above-described unit and, on request by the
Union, meet and bargain in good faith.
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On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended15
ORDER
The Respondent, Paramus Ford, Inc., Paramus, New Jersey, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain in good faith with Local 355, United
Service Workers Union, IUJAT, AFL-CIO as the exclusive collective-bargaining representative
of its employees in the below-described appropriate bargaining unit:
All service and parts department employees employed by
Paramus Ford, excluding guards and supervisors as defined by
the National Labor Relations Act.
(b) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive representative of the employees
in the following appropriate unit concerning terms and conditions of employment and, if an
understanding is reached, embody the understanding in a signed agreement:
All service and parts department employees employed by
Paramus Ford, excluding guards and supervisors as defined by
the National Labor Relations Act.
(b) Within 14 days after service by the Region, post at its facility in Paramus, New
Jersey, copies of the attached notice marked “Appendix.”16 Copies of the notice, on forms
provided by the Regional Director for Region 22, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time since February 8, 2006

15 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
16 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.”
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(c) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C.
____________________
Steven Davis
Administrative Law Judge
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Paramus, NJ
APPENDIX
NOTICE TO MEMBERS
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to
post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf with your employer
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT fail and refuse to recognize and bargain in good faith with Local 355, United Service
Workers Union, IUJAT, AFL-CIO as the exclusive collective-bargaining representative of its employees in
the below-described appropriate bargaining unit:
All service and parts department employees employed by Paramus Ford,
excluding guards and supervisors as defined by the National Labor
Relations Act.
WE WILL NOT in any like or related manner interfering with, restraining, or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL on request, bargain with the Union as the exclusive representative of the employees in the
following appropriate unit concerning terms and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agreement:
All service and parts department employees employed by Paramus Ford,
excluding guards and supervisors as defined by the National Labor
Relations Act.
PARAMUS FORD, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
20 Washington Place, 5th Floor
Newark, New Jersey 07102-3110
Hours: 8:30 a.m. to 5 p.m.
973-645-2100.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 973-645-3784.