Zylan Pontiac

National Labor Relations Board - Board Decisions

Sep 16, 1980

252 N.L.R.B. 201 (N.L.R.B. 1980)

ZYLAN PONTIAC
Zylan Pontiac and Amalgamated Local Union 355.
Case 29-CA-7127
September 16, 1980
DECISION AND ORDER
On July 15, 1980, Administrative Law Judge
Julius Cohn issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Zylan Pontiac,
Bayshore, New York, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the said recommended Order.
Respondent has excepted to the Administrative Law Judge's findings
that the wage increase was an unfair labor practice. We find merit to this
exception in light of the fact that the complaint did not allege that the
increase was unlawful.
Furthermore, we agree with the Administrative Law Judge that Re-
spondent was a successor employer as of March 28, 1979, when it com-
menced operation of the business. In doing so, however, we place no reli-
ance on Border Steel Rolling Mills Inc.. 204 NLRB 814 (1973), which was
cited by the Administrative Law Judge. In that case, the Board majority
agreed with the Administrative Law Judge that the employer was not a
successor and that the complaint should be dismissed.
DECISION
STATEMENT OF THE CASE
JULIUS COHN, Administrative Law Judge: This pro-
ceeding was heard in Brooklyn, New York, on Novem-
ber 13, 1979. Upon a charge filed and served on April 9,
1979, the Regional Director for Region 29 issued a com-
plaint on May 31, 1979, alleging that Zylan Pontiac,
herein called Respondent or the Company, violated Sec-
tion 8(a)(1) and (5) of the Act by refusing to recognize
and bargain in good faith with Amalgamated Local
Union 355, herein called the Union. Respondent filed an
answer denying the commission of unfair labor practices.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally and to file briefs. The
General Counsel and Respondent submitted briefs which
have been carefully considered. On the entire record in
the case and from my observation of the witnesses and
their demeanor, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Respondent is a New York corporation engaged in the
retail sale and distribution of new and used automobiles
and related products at Bayshore, New York. Based
upon a projection for a 12-month period beginning
March 28, 1979, Respondent will have received gross
revenue in excess of $500,000 from the sale of auto-
mobiles, of which goods and materials valued in excess
of $50,000 will have been transported and delivered to its
place of business directly from States of the United
States other than the State of New York. The complaint
alleges, the answer admits, and I find that Respondent is
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The undisputed evidence is that Respondent com-
menced operation of the automobile dealership in Bay-
shore, New York, on March 28, 1979, having purchased
the business from Kerri Pontiac, who had terminated its
operation on the previous day, March 27. The Union had
a collective-bargaining agreement since 1974 with the
predecessor of Kerri, Montauk Pontiac. Kerri took over
the dealership in 1977 and thereupon recognized the
Union and signed a collective-bargaining agreement with
it running from November 1, 1977, until October 31,
1980. The agreement covered a unit of "all employees in
the service department."
The record reveals that Respondent continued the
business of selling automobiles and operating the dealer-
ship in much the same manner as previously and that the
sales and office complement remained approximately the
same. With regard to the service department employees
involved herein, the testimony of Respondent's service
manager, Jerry Childs, establishes that most of the em-
ployees who had been working for Kerri continued in
employment with Respondent. Childs himself had been
the service manager under Kerri.
Childs credibly testified that there were 15 employees
in the service department of Kerri, of which 12 came
over to Respondent on March 28, and 3 did not. In addi-
tion, Respondent hired two employees who did not work
for Kerri. Accordingly, a majority of Kerri's service de-
partment employees immediately began working for Re-
spondent and they also constituted a majority of Re-
spondent's service employees at the outset of its oper-
The General Counsel failed to obtain and offer payroll records to in-
dicate those employees employed by Respondent on March 28, who had
also been employed by Kern on March 27; nor did he offer any other
probative evidence of the employee complements of both companies.
However. the uncontradicted testimony of Respondent's witness, Childs.
is sufficient to determine the number and identity of employees who
came over to Respondent from Kerri.
252 NLRB No. 37
201
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ation. Childs stated that Respondent opened a body
shop, a service which had been discontinued by Kerri,
but this did not commence until about April 15, and, in
any case, only consisted of two additional employees.
Marvin Raphael, business agent of the Union since No-
vember 1978, testified that from time to time, he visited
the premises of Kerri and processed grievances. He in-
troduced records of the Union indicating that dues had
been checked off and welfare payments made by Kerri
for the months of January and February 1979, for six
employees. Raphael explained that he had problems with
Kerri concerning employees who had just finished their
probationary period, that Kerri had neglected to advise
the Union of their presence or inform the employees of
their obligation under the union-security clause. He said
he last visited Kerri about 2 weeks prior to Respondent's
takeover and had asked whether the new owner wanted
to meet with the Union but he received a negative re-
sponse. He finally met with Zylan of Respondent, on
April 6, and asked him whether he would accept the
Kerri contract or negotiate a new one. Zylan told Ra-
phael he did not want a Union nor did he believe his
people wanted one. Zylan also said he had initiated a
new pay schedule and some employees had told him that
they would just as well not have a Union. Zylan did not
indicate who these employees were or how many there
were. Raphael, on that date, also spoke to some employ-
ees who told him they had received large pay increases
and, at that point, did not want a Union. Raphael told
Zylan on April 6 that he had some new authorization
cards under the new company name and exhibited four,
but Zylan did not want to see them. Zylan did say, how-
ever, that if the Union won an election he would then
have to bargain with it. 2
B. Discussion and Analysis
It is clear from the foregoing that Respondent became
a successor employer to Kerri on March 28, 1979, when
it took over the automobile dealership and other assets
and continued the same operation of selling new and
used automobiles at the Bayshore, Long Island, location.
It employed the same work force, or in any case, a ma-
jority of the service department employees who had
worked for Kerri as well as the supervision. I find that
Respondent was a successor as of that date. 3
In N.L.R.B. v. William J. Burns International Security
Services, Inc., 406 U.S. 272 (1972), the Supreme Court af-
firmed the Board's successor employer doctrine, finding
that a successor employer, absent a reasonably based
good-faith doubt of the incumbent union's majority, is
obligated to recognize the continuing representative
status of the bargaining agent of its predecessor's em-
ployees in an appropriate unit taken over from the prede-
cessor. This is applied not only where the union's status
was established by Board certification but also where it
had been established by voluntary recognition. 4
The presumptions of continuing majority status are ap-
plicable to the successor employer. If such presumption
I Zylan himself did not appear or testify at the hearing.
3 Border Steel Rolling Mills. Inc., 204 NLRB 814 (1973).
4 Virginia Sportswear, Inc., 226 NLRB 1296, 1300 (1976).
exists and has not been overcome, the incumbent union
need not reestablish its majority status by an election or
by a card showing and the successor violates Section
8(a)(5) if it refuses to recognize and bargain with the
union. 5
Respondent has set forth a number of contentions
through which it urges that the Union is not entitled to
recognition. First, Respondent claims that the unit is not
appropriate because the description as contained in the
prior collective-bargaining agreement refers only to "all
employees in the service department." However, there is
no requirement, inferred by Respondent, that the de-
scription expressly exclude other employees and supervi-
sors. In this connection Respondent points to the fact
that Tortorello, the parts manager, is a supervisor who
was included in the unit. Other than his title as parts
manager, there is no evidence in this record that Tortor-
ello possessed the indicia of authority and responsibility
that would establish he was indeed a supervisor within
the meaning ot the Act.
Respondent's principal contention is that the Union did
not represent a majority of the employees and Respond-
ent had a reasonable doubt of this based upon objective
considerations. In support of this, Respondent points to
the union records submitted by the General Counsel
which show that checkoffs had been made by Kerri for 6
employees in a unit of approximately 15, obviously less
than a majority. With regard to dues-checkoff, the Board
and courts have held that the fact that less than a major-
ity of the unit employees were on dues-checkoff in
recent months did not demonstrate that the union had
lost its majority status or that Respondent could thus
have had an adequate basis for reasonably based doubt of
such status.6
Respondent, as its basis for objective considerations,
mainly relies on alleged defections of employees from
the unit. The only evidence offered in support of this ar-
gument is through the testimony of the business agent,
Raphael, who stated that, when he demanded recogni-
tion, Zylan told him, among other things, that employees
had said they did not want the Union. Zylan himself, as
previously indicated, did not testify nor did any employ-
ees. The testimony of Raphael as to what Zylan told him
he had heard from employees is of course hearsay.
Moreover, even if true, there is no indication as to how
many employees expressed these sentiments. Indeed, Ra-
phael himself stated that "some" employees had told him
they no longer wanted to be represented by the Union.
This is an indefinite characterization. I find in these cir-
cumstances Respondent has not met its burden of show-
ing by probative evidence sufficient basis for its allega-
tion that the Union no longer represented a majority of
the employees.
Even assuming that a sufficient number of employees
had indicated to Respondent that they no longer desired
union representation, in the circumstances of this case, it
would not have been sufficient basis for Respondent's re-
Barrington Plaza and Tragniew. Inc., 185 NLRB 962 (1970).
8 Bartenders. Hotel, Motel and Restaurant Employers Bargaining Associ-
ation of Pocatello, Idaho, 213 NLRB 651 (1974); Terrell Machine Company
v. N.L.R.B., 427 F.2d 1480 (4th Cir. 1970).
202
ZYLAN PONTIAC
liance on expressions of employee dissatisfaction or with-
drawal from the Union. This is so because the uncontra-
dicted evidence is that, upon assuming operation of the
business on March 28, Respondent, despite its obligations
as a successor employer, unilaterally granted raises in
wages and other benefits to the employees. Thus, some
employees told Raphael that they did not want the
Union because of these increased benefits. Such conduct
on the part of Respondent constitutes an unfair labor
practice "of such a character as to either affect the
union's status, cause employee disaffection, or improper-
ly affect the bargaining relationship itself."7
Although I have indicated that the unilateral changes
instituted by the employer were an unfair labor practice,
I shall not find a violation in that regard inasmuch as, for
reasons best known to himself, the General Counsel has
not alleged such conduct in the complaint as an unfair
labor practice.
In sum, I find that Respondent is a successor employ-
er, and it has failed to establish either that the Union did
not in fact enjoy majority support, or that it had reason-
able grounds, based on objective considerations, for be-
lieving so at the time of its refusal to bargain with the
Union. Therefore, by its failure to recognize and bargain
with the Union as the majority representative of its em-
ployees in an appropriate unit on and after April 6, 1979,
Respondent violated Section 8(a)(5) and (1) of the Act.8
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All service department employees employed by Re-
spondent at its Bayshore, New York, facility, excluding
guards, supervisors as defined in the Act, and all other
employees, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section
9(b) of the Act.
4. At all times material herein, the Union has been the
exclusive bargaining representative of the employees in
the aforesaid appropriate unit within the meaning of Sec-
tion 9(a) of the Act.
5. By failing and refusing at all times since April 6,
1979, to recognize and bargain with the Union as the ex-
clusive representative of the employees in the appropri-
ate unit, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(5) and (I) 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 engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act.
7 Guerdon Industries, Inc., Armor Mobile Homes Division, 218 NLRB
658, 661 (1975).
8 LA.X. Medical Clinic Inc.. et al., 248 NLRB 861 (1980).
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 9
The Respondent, Zylan Pontiac, Bayshore, New York,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively with
Amalgamated Local Union 355, as the exclusive bargain-
ing representative of its employees in the following ap-
propriate unit:
All service department employees employed at its
Bayshore, New York, facility, excluding all guards
and supervisors as defined in the Act and all other
employees.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Bargain collectively, upon request, with Amalga-
mated Local Union 355, as the exclusive representative
of the employees in the appropriate unit described above,
with respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment,
and, if an understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its facility in Bayshore, New York, copies
of the attached notice marked "Appendix."' ° Copies of
the notice, on forms provided by the Regional Director
for Region 29, after being duly signed by Respondent's
representative shall be posted by it immediately upon re-
ceipt thereof and be maintained by it for 60 consecutive
days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material,
(c) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
9 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusion and Order, and all objections thereto shall
be deemed waived for all purposes.
I' In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
203
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to recognize and bargain
collectively with Amalgamated Local Union 355 as
the exclusive bargaining representative of our em-
ployees in the following approriate unit:
All service department employees employed at
our Bayshore, New York, facility, excluding all
guards and supervisors defined in- the Act, and all
other employees.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exericse of the rights guaranteed them in Sec-
tion 7 of the Act.
WE WILL recognize and upon request bargain
with the Union as the exclusive representative of
our employees in the aforesaid appropriate unit,
with respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of em-
ployment, and, if an agreement is reached, embody
such understanding in a signed agreement.
ZYLAN PONTIAC
204