NOTICE: This opinion is subject to formal revision
before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive
Secretary, National Labor Relations Board,
Paramus Ford, Inc. and Local 355, United Service Workers
October 31, 2007
DECISION AND ORDER
By Chairman Battista and Members Liebman
and Schaumber
On January 31, 2007, Administrative Law Judge Steven Davis issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief.
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions1 and to adopt the recommended Order as modified.
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge, as modified below, and orders that the
Respondent, Paramus Ford, Inc.,
Change the date in the last sentence in paragraph 2(b) to February 13, 2006.
Dated,
Robert J. Battista, Chairman
Wilma
B. Liebman, Member
Peter
C. Schaumber
Member
(seal) National
Labor Relations Board
Marguerite R. Greenfield, Esq., of
Frank J. Peterpaul and Luanne M. Peterpaul, Esqs. (Peterpaul, Clark & Corcoran,
PC), of
Richard M. Greenspan, PC, of
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 (
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
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
ii. alleged unfair labor practices
A. The Facts
1. The start of operations
Pistilli Ford operated the facility at 365 Route 17,
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
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
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
John Ames, the Union’s president, testified that upon
hearing a rumor of a change in ownership of the
To FMC
Re: Bargaining Demand and Information Request
Local 355, USWU, IUJAT (
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 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.
In this respect I do not credit
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 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.
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
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 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
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
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 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
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.”
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.
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
The unit sought by the
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
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).
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
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.
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
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
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 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
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.
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
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
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 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
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.
In
As set forth above, the
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.”
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
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 employees[11] 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
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 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
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 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
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
The letter to FMC is expressly entitled “bargaining demand
and information request.” The
The
The letter to Selman advises him that the
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
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
The result should be the same here. The
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
In these circumstances, the Respondent “understood or reasonably
should have understood” that
The
The Respondent argues that no clear demand was made by the
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
Conclusion
As set forth above, the
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
Conclusions of Law
1. The following employees constitute a unit appropriate for collective bargaining 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
On these findings of fact and conclusions of law and on the entire record, I issue the following recommended[15]
ORDER
The Respondent, Paramus Ford, Inc.,
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
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
(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,
APPENDIX
Notice To Members
Posted by Order of the
National Labor Relations Board
An Agency of the
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.