Cruse Motors, Inc.

242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the organization of Respondent's employees and actively represented those employees in collective bargaining. Cf Sunbeam Corporation, 98 NLRB 525 In the opinion of the Trial Examiner it would frustrate the congressional intent as expressed in Section 9 (f), (g), and (h), and in its legislative history,4 to extend to the officers of the Sublocal a present opportunity to cure past noncompliance Indeed, it is difficult to compre- hend, in view of the turnover in the officers of the Sublocal as shown by the record, how compliance by its present officers could cure retroactively the noncompliance by an earlier staff at the time which was crucial to the issuance of the present complaint. 5 In any event, since the noncomplying Sublocal was the real party in interest, it was in fact the charging party. Wood Parts, Inc , 101 NLRB445. The complaint, which was based entirely on its charges, should therefore be dismissed in its entirety Ibid, and cf. Sunbeam Corpora- tion, 98 NLRB 525 It is so recommended. 41 e., to "[exert] pressures on unions to deny office to Communists" by withholding Board assistance from noncomplying unions American Communications Association v. Douds, 339 U. S. 382, 393. s It is also to be noted, from the General Counsel's representations as to noncompliance of Local 12-15 itself for a period prior to January 15, 1952, that there is present in this case the same question now before the Supreme Court for decision in N L.R.B. v. Dant & Russe, Ltd , 344 U. S. 375 And see N. L. R. B. v. Nina Dye Works, 198 F. 2d 362 (C. A. 3), N. L. R. B. v. American Thread Co., 198 F 2d 137 (C. A. 5). CRUSE MOTORS, INC. and LODGE 1017 OF DISTRICT 64, INTERNATIONAL ASSOCIATION OF MACHINISTS, A.F.L. Case No. 1-CA-1333. June 1, 1953 DECISION AND ORDER On March 18, 1953, Trial Examiner Charles W. Schneider issued his Intermediate Report in the above - entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take cettain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent did not engage in certain other alleged unfair labor practices and recommended that the complaint be dismissed with respect to such allegations. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board' has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report , the exceptions and brief, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations. iPursuant to the provisions of Section3(b)ofthe Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Murdock and Peterson]. 105 NLRB No. 35 CRUSE MOTORS, INC. ORDER 243 Upon the entire record in the case , and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Re- spondent , Cruse Motors , Inc., its officers , agents, succes- sors , and assigns , shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Lodge 1017 of District 64, International Association of Machinists , A.F.L., as the exclusive representative of all mechanics , bodymen , painters, helpers , motorcycle driver, and stock clerks , but excluding executives , office and clerical employees , guards , profes- sional employees , and supervisors as defined in the Act. (b) Interfering with, restraining , or coercing employees in the exercise of rights guaranteed in the Act , by refusing to bargain collectively , by bargaining directly and individually with employees , or by unilaterally granting wage increases, or by any like or related action. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request , bargain collectively with Lodge 1017 of District 64, International Association of Machinists , A.F.L, as the exclusive representative of the employees within the appropriate unit described above with respect to rates of pay, wages , hours of employment , and other conditions of employ- ment, and if an understanding is reached , embody such under- standing in a signed agreement. (b) Post at its premises in Providence , Rhode Island , copies of the notice attached to the Intermediate Report marked "Appendix A."' Copies of such notice , to be furnished by the Regional Director for the First Region , shall, after being duly signed by the Respondent's representative , be posted by the Respondent immediately upon receipt thereof and be main- tained by it for sixty ( 60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced , or covered by any other material. (c) Notify the Regional Director for the First Region, in writing , within ten ( 10) days from the date of this Order, as to what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges that the Respondent violated Section 8 (a) (I) of the Act by interrogating employees concerning their attitudes towards collective bargaining. 2 This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" in the caption thereof the words "A Decision and Order." In the event that this Order is enforced by decree of a United States Court of Appeals, the notice shall be further amended by substituting for the words "Pursuant to a Decision and Order" the words "Pur- suant to a Decree of the United States Court of Appeals, Enforcing an Order." 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Intermediate Report and Recommended Order STATEMENT OF THE CASE This proceeding, brought under Section 10 (b) of the National Labor Relations Act (61 Stat. 136) was heard in Providence, Rhode Island , on February 17, 1953 , upon due notice. The complaint , issued on January 23, 1953 , by the General Counsel of the National Labor Relations Board, and based upon a charge duly filed by the Union and served , alleged , as subsequently amended without objection, that the Respondent , Cruse Motors , Inc., Providence, Rhode Island, had engaged in unfair labor practices proscribed by Section 8 (a) (1) and (5) of the Act by refusing to bargain collectively with the Union , by bargaining individually with employees concerning conditions of employment, and granting wage increases , and by interrogating em- ployees concerning their attitudes towards collective bargaining. By answer duly filed the Respondent denied the commission of unfair labor practices. All parties were represented at the hearing and were afforded full opportunity to be heard, to examine and cross -examine witnesses , to introduce relevant evidence , to argue orally, and to file briefs and proposed findings and conclusions . A memorandum and proposed findings and conclusions were filed by the Respondent on March 5 , 1953. The Respondent 's proposed findings of fact contained in paragraphs I to N inclusive of its proposed findings and con- clusions are accepted . The conclusions in paragraph V thereof are rejected . On March 9, 1953, the General Counsel filed a brief. Upon the entire record in the case, and from observation of the witnesses , I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Cruse Motors, Inc., is a Rhode Island corporation with its principal office and place of business in the city of Providence, Rhode Island, where, since September 30, 1952, it has been engaged in the sale, servicing , repair , and distribution of new and used automobiles and trucks and related products. In this connection the Respondent holds a franchise from the Chrysler Corporation as a retail dealer for Plymouth and Dodge automobiles and trucks. From October 1, 1952, to January 31, 1953, the Respondent sold new automobiles valued at $437,600, and parts and accessories and labor valued at $131,500. During the same period it purchased vehicles, parts , and accessories from sources in Detroit , Michigan, in the amount of $260,000; and purchased locally new vehicles, which originated in Detroit, valued at $96,000. All the Respondent's sales are made locally. It is conceded, and found, that the Respondent is engaged in commerce within the meaning of the Act. N. L. R. B. v. Ken Rose Motors, 193 F. 2d 769 (C. A. 1); N. L. R. B. v. Somerville Buick, 194 F. 2d 56 (C. A. 1); cf. N. L. R. B. v. Daniels , 202 F. 2d 579 (C. A. 6). II. THE LABOR ORGANIZATION INVOLVED Lodge 1017 of District 64, International Association of Machinists , A. F. L„ the Union herein, is a labor organization admitting to membership employees of the Respondent. Ill. THE UNFAIR LABOR PRACTICES Prior to September 30, 1952 , O'Keefe Motors , Inc., with which firm the Respondent had no connection , operated a retail automobile business , under franchise for the sale and servicing of Dodge and Plymouth automobiles and trucks at the location now occupied by the Respondent: 1200 North Main Street , in the city of Providence. On May 15, 1952, in Case No. 1-RC-274 , the service department , or shop, employees of O'Keefe elected the Union as their exclusive collective -bargaining representative, and on May 23, 1952, the Union was duly certified as such by the Board . The appropriate bargaining unit was as follows: All mechanics , bodymen, painters , helpers , motorcycle driver, and stock clerks, but excluding executives , office and clerical employees , guards, professional employees, and supervisors as defined in the Act. i i In the present case it was stipulated, and it is found, that the categories of employees in the certified unit, with the addition of the janitor (who voted in the election ) constitute an ap- propriate bargaining unit of the Respondent 's employees. CRUSE MOTORS , INC. 245 Thereafter , about July 1 , 1952 , O'Keefe and the Union entered into a written collective- bargaining contract covering the employees in the unit and containing a clause providing that the contract should cover any other shops which O'Keefe might operate in the future; and further , that it should be applicable in the event of any shift of geographical location. During the course of the negotiations , the Union also attempted to secure from O'Keefe a contract clause binding any successor in title to the terms of the agreement ; but iii this effort the Union was unsuccessful , and the contract was executed without any such clause. On September 15, 1952 , O'Keefe and the Respondent entered into a written sales agree- ment in which O'Keefe contracted to sell to the Respondent certain of O'Keefe's property at the North Main Street location. So far as appears , this was the only automobile business owned or operated by O'Keefe at that time , though it seems to have been contemplated and understood that at the transfer of the Main Street location to Cruse , he (O'Keefe) would continue in business at some other location. The sales agreement provided , inter alia, as follows: Cruse to take the following described property of O'Keefe 's used by O'Keefe in the oper- ation of his Dodge and Plymouth business. All parts and accessories , which are not obsolete (as obsolete is understood in the automobile service business ) for Dodge and Plymouth automobiles and Dodge trucks; All tools and equipment owned outright by the Seller and currently used by it in carry- ing on its business except signs bearing the Seller 's name, All office furniture and equipment owned by the Seller and currently used by it in its business except such office furniture as has been personally used by Mr . G. Merlyn O'Keefe. The agreement set no specific price for the above property ; the amount was to be subject to later agreement of the parties ; or failing agreement, was to be set by arbitrators. Cruse assumed O'Keefe's obligations under "Car Life Guarantee " policies issued by O'Keefe prior to delivery of the property. Provision was made for reimbursement to Cruse for the assumption of this obligation by deduction from the purchase price. O'Keefe agreed to indemnify Cruse for any liability of the latter as transferee for any of O'Keefe's Federal, State , or city unpaid taxes . Cruse was given the option of taking over O'Keefe's advertising reserve with the Dodge Division of Chrysler Corporation , upon payment therefor. O'Keefe agreed to use his best efforts to obtain a satisfactory transfer to Cruse of O'Keefe's lease upon the premises , the agreement being contingent upon the securing of such a transfer. Cruse agreed to use hisbestefforts to obtain a franchise for the sale of Dodge and Plymouth automobiles and trucks , the agreement likewise being contingent upon the securing of such franchise. Cruse assumed by the contract only such of O'Keefe 's obligations as are mentioned above. All the conditions of the contract being satisfied , the transfer was effected on September 30, 1952. Some modification of the sales agreement was made at the time of closing, per- mitting O'Keefe to retain certain parts and equipment which he indicated a desire to keep. All told, O'Keefe retained assets valued at about $81,000, made up as follows : Used cars $35,000; accounts receivable $4,000 to $5 ,000; company cars $10 ,000; parts $9,500; service truck $1 ,200; furniture $1,500; miscellaneous items $500 ; and cash $20 ,000. The total purchase price paid by Cruse was in the neighborhood of $45 ,000 made up about as follows: parts $20 ,000; equipment $14,000; furniture $6,000; and the remainder miscellaneous items. Upon the effectuation of the transfer on September 30, 1952 , O'Keefe removed from the premises , the Respondent moved in , and has continued since that date to operate the same type of business , selling and servicing Dodge and Plymouth vehicles and parts under franchise, and the purchase , sale, and service of used cars. Cruse secured his initial stock of new cars , valued at about $96,000 , from Universal CIT, a financing organization , which had originally held the cars for O'Keefe on trust receipts. Cruse took these over. Shortly before September 30, 1952 , O'Keefe leased premises in East Providence, Rhode Island, where, after or simultaneously with the transfer , he began the operation of another car business . At that location O'Keefe now has a franchise for the sale and service of cer- tain new foreign cars , and also sells used cars and parts . The property from the North Main Street location which O'Keefe retained was presumably removed to and used at his East Providence location. When he moved , O'Keefe took his sales force along with him. However, the other em- ployees, including the auditor and the service manager, remained with Cruse. On leaving, O'Keefe informed the employees in the bargaining unit, 13 in number , that he had sold the 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD business to Cruse and that they should make their arrangements for employment directly with the latter. On taking over, Harold J. Cruse, the Respondent's president, told the em- ployees in the bargaining unit to report the next day, and he would see what could be ar- ranged about employment. Eleven of the thirteen employees reported for work the next day. Two, for reasons not disclosed, did not report. The 11 were put to work by the Respondent. Thus, of the 13 employees on O'Keefe's September 30, 1952, payroll, 11 were on Cruse's October 8, 1952, payroll. Since September 30, 1952, the employees in the unit have con- tinued to perform the same type of work as they did for O'Keefe, but as employees of the Respondent. Six of the original eleven were still in the Respondent's employ on January 29, 1953. The number of employees in the unit has remained substantially the same at all times since the transfer. On October 6, 1952, Union Representatives BabbitandKelly called on President Cruse of the Respondent and asked that the Respondent recognize the Union as the representative of the employees in the appropriate unit. President Cruse replied that since he had just taken over the business, he would like a few days in which to think the matter over. After the union repre- sentatives left, Cruse asked the union steward, Fenezio, a rank-and-file employee, whether the employees in the unit wanted the Union to represent them. Fenezio suggested that Cruse contact the men individually himself. Cruse thereupon called a meeting of the employees in the unit, told them of the Union's visit, said that he had no "axe to grind" either for or against the Union, and asked how the employees wanted the matter handled. Receiving no answer, Cruse told the employees to think the matter over and let him know by the following afternoon. On the following morning a group of employees came to Cruse and told him that the em- ployees had "agreed among themselves to leave it as it was right at that particular time." This Cruse interpreted to mean that the employees did not wish any representation. On October 10, 1952, Union Representative Babbit contacted President Cruse for an answer with respect to the Union's request for recognition. Cruse told Babbit that he would rather have an election. On October 29, 1952, the Union filed with the Board a petition for an election among the Respondent's employees in the appropriate unit, based on newly signed designation cards. However, the Regional Office of the Board informed the Union that the petition could not be processed because there was an outstanding valid certification in effect. Sometime in October 1952 (the exact date is not clear) the Respondent granted the em- ployees in the appropriate unit a wage increase of 15 cents per hour and a paid holiday on October 12, 1952. It gave no notice to nor consulted with the Union concerning these matters The answer admits the allegation in the complaint that the Respondent bargained directly and individually with the unit employees respecting rates of pay and hours of employment, and granted wage increases. On October 31, 1952, hearing of the Respondent's unilateral action with respect to the wage increase and the paid holiday, Union Representatives Reardon, Babbit, and Kelly called on President Cruse, and, the latter being ill, were referred to his assistant, Barton. Reardon asked if the Respondent was going to recognize the Union. Barton replied that since Cruse did not sign the contract he did not feel under any obligation to accept it. Reardon responded that unless recognition were extended by November 3, the Union would file charges of refusal to bargain. Recognition not being forthcoming, the Union, on November 4, 1952, withdrew its petition and filed the instant charge. Conclusions The substantial issue is whether the Respondent is a successor employer within the mean- ing of Board decisions. The General Counsel contends that it is; the Respondent that it is not. A certification by the Board to the fact that a Union is the exclusive bargaining repre- sentative of employees within the meaning of the Act creates a presumption of majority status, rebuttable during the first year of the certification only by a showing of unusual circumstances; and thereafter by evidence raising doubt as to continued majority status. Celanese Corp., 95 NLRB 664; Southerland's Tennessee Company, Inc., 102 NLRB 1178. In the interest of stabilized industrial relationships Board certifications based upon secret-ballot elections must be effective for a reasonable period; and during that time even revocations of designation, save in unusual situations, do not impair the validity of the certificate. Ap- palachian Power Co., 140 F. 2d 217, 239-42 (C. A. 4); and see Whittier Mills, 111 F. 2d 474 (C. A. 5); Gatke Corp., 162 F. 2d 252 (C, A. 7); Geraldine Novelty Co., 173 F. 2d 14 (C. A. 2), Sanson Hosiery Mills, 195 F. 2d 350 (C. A'. 5), cert. den. 344 U. S. 863; Reeder Motor Co., 96 NLRB 831; Poole Foundry Co., 192 F. 2d 740 (C. A. 4), cert. den. 324 U. S. 954. CRUSE MOTORS, INC. 247 In the instant case the asserted oral revocation of designation by the employees, occurring within the first year of the certification, largely hearsay; and in the circumstances of sub- stantially lesser evidential value than their prior formal secret-ballot choice, is insufficient to overcome the presumption raised by the certificate. If then, the certification is binding on the Respondent, its vitality continued unabated by the asserted defection. A mere change in ownership of the employment enterprise is not so unusual a circumstance as to affect the certification. Where the enterprise remains essentially the same, the obli- gation to bargain of a prior employer devolves upon his successor in title. A purchaser in such a situation is a successor employer. Armato, 199 F. 2d 800 (C. A. 7); Southerland's Tennessee Company, Inc., 102 NLRB 1178; Allan W. Fleming, 91 NLRB 612; Blair Quarries, Inc., 152 F. 2d 25 (C. A. 4). "It is the employing industry that is sought to be regulated and brought within the corrective and remedial provisions of the Act in the interest of industrial peace. . . . It needs no demonstration that the strife which is sought to be averted is no less an object of legislative solicitude when contract, death, or operation of law brings about change of ownership in the employing agency." Kiddie Kover Co., 105 F. 2d 179, 183 (C. A. 6). Where, however, the nature or extent of the employing enterprise, or the work of the em- ployees, is substantially changed, the transfer of a part, or even all, of the physical assets does not carry along with it the duty of the former owner to continue bargaining with the former exclusive representative. Herman Lowenstein, 75 NLRB 377; Sewell Mfg. Co., 72 NLRB 85; Tampa Transit Lines, 71 NLRB 742. The purchaser in such a situation is not a successor employer. The controlling fact in each case is therefore whether the employment enterprise substantially or essentially continues under the new ownership as before. The Respondent contends that the doctrine of successorship is applicable only where the purchaser takes all or substantially all the assets of the prior owner; and particularly, that the principle is inapplicable where the seller remains actively in a competitive business and remains bound at the competing location by the express terms of a union contract antedating the transfer. Thus the Respondent points to the following facts as refuting any conclusion that it is a successor employer to O'Keefe: (1) The Respondent did not purchase all the assets of O'Keefe; it has been seen that the value of the assets of the business retained by O'Keefe was almost twice the value of those sold to theRespondent; (2) the Union secured a contract with O'Keefe, and that during the negotiations therefor it sought a clause making the contract binding upon a purchaser, but did not get it; (3) O'Keefe is presently in business at another location and subject to the contract; (4) the Respondent negotiated its own lease of the premises directly from the owner, and secured its own franchise directly from Chrysler; (5) the Respondent did not purchase any of O'Keefe's good will, accounts receivable, or cash; or assume all O'Keefe's obligations; (6) O'Keefe's employees were not transferred or assigned to the Respondent, but directed to make their own arrangements with the Respondent, which they did; (7) in sum, that the Respondent's business is substantially a new one, different from O'Keefe's. That O'Keefe did not sell to the Respondent all the assets used in his Main Street business, while a factor to be weighed in determining whether the enterprise conducted by the Re- spondent was essentially the operation conducted by O'Keefe, is not controlling where the qualitative factors of continuity of enterprise remain essentially unchanged. Thus, save for new ownership, different vehicles and salesmen, presumably some new equipment and furni- ture in part, and the Respondent's own cash account, good will, and receivables, there was no change in the nature of the business conducted or its manner, the employees affected, their immediate supervision, nor the character of, the employees' work. The Respondent continued without interruption of operations to do what O'Keefe had done at the same loca- tion and which O'Keefe could no longer do, lacking a franchise: sell and service Dodge and Plymouth automobiles and trucks. So far as Dodge and Plymouth customers were concerned, they did business with the enterprise on one day with O'Keefe in charge, and on the follow- ing day with Cruse in charge, but without other visible substantial change. So far as the em- ployees in the appropriate unit were concerned, the sale effected no change whatever except as to the identity of their employer. They in essence left their work places one evening as the employees of O'Keefe and returned to them the next morning as the employees of Cruse, continuing to perform the identical services, and in the same way, for Cruse that they had rendered for O'Keefe, and for a time under the same conditions of employment. That this continuity was not pursuant to express agreement between O'Keefe and Cruse is not con- trolling where, as here, it constituted a continuity of employment enterprise, though it might be controlling where the succession was otherwise in character. 291555 0 - 54 - 17 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This, in my judgement, constituted the Respondent a successor to O'Keefe within the meaning of Board and court decisions . The Respondent purchased substantial assets from O'Keefe necessary to, and intended for, the operation of the same kind of enterprise; it continued the operation of the business and the service department as before ; the supervisor of the unit employees--the service manager --remained the same; with two exceptions the employees in the unit remained the same. Upon these facts I conclude that the employment enterprise continued substantially under the Respondent as under O'Keefe , and that the transfer constituted essentially merely a change in ownership. The Board said in the case of Northwest Glove Co., Inc., 74 NLRB 1697, 1699 (transfer from partnership to corporation and reconversion from war to civilian produc- tion): Conversion of the business from war to civilian production, which would have been neces- sary no matter who owned it if it was to be continued , was accomplished without changing its essential character of operations . The corporation continued to manufacture and distribute the same product as the partnership ; used the same plant and equipment; retained the distinctive portion of the partnership 's trade name; initially recruited its working force exclusively from a pool consisting of the partnership 's laid-off em- ployees; and at all times thereafter had a working force of which a majority consisted of employees who had formerly been employed by the partnership. Upon the basis of the entire record , we find that the corporation took over and continued the business formerly conducted by the partnership, that it is the partnership's successor, and that the change in structure from partnership to corporation did not change the relationship of the em- ployees to the business. That the Respondent may not have been bound by O'Keefe's contract with the Union--indeed that the contract may be construed as specifically rejecting such an obligation--is not con- trolling. Whether the Respondent was required by the statute to continue dealing with the Union as the exclusive representative of its employees is a matter of interpretation of the Act and not of the contract. Though the contract may create private rights and duties en- forceable under other laws , so far as this statute is concerned, the obligation to bargain is one neither created nor alterable by private agreement.' Nor is it dispositive that O'Keefe established a new automobile business at another loca- tion. That his operation there may be subject to the contract is not quite the same as saying that it is subject to the Act. The obligations which parties assume by agreement are not necessarily what may be required by law. But I do not find it necessary to pass upon the extent of O'Keefe's present duties under the statute. Whatever they maybe, the important fact here is that the employment enterprise which he operated on Main Street is essentially the enterprise now conducted at that location by the Respondent , and that the Respondent is a successor to O'Keefe within the meaning of Board and court decision. In the case of Allan W. Fleming, 91 NLRB 612, which involved the transfer of a DeSoto-Plymouth automobile agency from one Fleming to one Gore , Fleming continuing as a corporate enterprise, the Board, in finding Gore a successor, said: We note that . . . Gore relies particularly on the fact that he has not taken over Fleming's franchise or all of its employees , and that he has hired some new employees. However, he does not deny or otherwise controvert the allegations .... that he has purchased Fleming's assets (with the exception of the franchise), and is continuing the same business , at the same location , with the same supervisor , and with some of the same employees . Furthermore, he does not contend that the nature of the unit has been changed as a result of the change in ownership or the hiring of new employees. We have previously held that where , after a direction of election has been issued, the business involved is sold , but there is no change in any essential attribute of the em- ployment relationship, the direction is to be construed as providing for an election among the employees of the successor . Under the circumstances of this case, we are convinced that, except for the substitution of Gore for Fleming, the relationship between the employees in the unit and their Employer has remained essentially un- changed. We therefore find, ... that Gore is a successor to Fleming.... 2Save as modified by Section 8 (d) of the Act or affected by policy principles inapplicable here. CRUSE MOTORS, INC. 249 The Respondent here distinguishes the Fleming case on the ground that Gore purchased all the assets of Fleming. I do not think that a distinguishing factor in the presented circum- stances. The ultimate test, in my judgment, is one of continuity of the employing enter- prise, and not of continuity of title to the assets; the latter is some, but not necessarily conclusive, indication as to the former. It is therefore found that the Respondent was and is obligated to continue to recognize and to bargain with the Union as the exclusive representative of its employees in the appropriate unit. The case of Herman Loewenstein, Inc., 75 NLRB 377, cited by the Respondent as supporting the principle that a failure to purchase all the assets of a predecessor negates any con- clusion of successorship, is distinguishable. The issue in that case was whether the Board should direct an election where two rival unions had presented conflicting claims for recog- nition. One of the unions contended before the Board that no election should be directed, for the reason, inter alia, that the employer was a successor to a former employer who had sole him some of the physical assets, and that the union had a contract with the former employer which was thus a bar to an election. The purchaser there, however, was not a successor. He planned to conduct a different operation than his predecessor. The Board noted that he retained only such of the seller's employees as were "considered qualified to do the different type of work required in [ the purchaser's) operations." In addition, as the Board further noted, the contract with the seller, even if considered binding on the purchaser, was about to expire, and would not have constituted a bar to an election. Thus, there being no contract or any outstanding certification barring it, an election would have been appropriate under the Board's decisional policies even if there had been no change of employers, or even if the purchaser had been a successor employer. The case of Sewell Mfg. Co., 72 NLRB 85, is likewise distinguishable. There 3 plants form- erly operating as 1 manufacturing enterprise were split in title, 2 being sold to new owners and both employers operating thereafter as business competitors. The sale included only the 2 buildings, and substantially none of the equipment or machinery. The issue was whether the purchasers of the 2 plants were obligated to remedy some of the unfair labor practices committed there by the predecessor, who was continuing his same business at the third plant. This sale constituted, as the Trial Examiner there found, not a sale of the business enter- prise, but "nothing more than a sale of real estate." The unit did not remain intact, as it did here. Similarly with the Tampa Transit Lines case, 71,NLRB 743. There, the Tampa Electric Co., whose principal business was the generation and sale of electric energy, also operated a bus company in Tampa, Florida, under collective-bargaining contract. Another company, Tampa Transit Lines, similarly operated public transportation in Tampa, also apparently under contract with the same union. Tampa Electric sold its bus lines to Tampa Transit. Upon petition by a rival union for an election at Tampa Transit, the contracting union claimed that its contract with Tampa Electric was a bar, on the ground that Tampa Transit was a successor to Tampa Electric. The Board ruled,to the cbntra'ry. It is seen that in that case the transfer involved the integration of two different appropriate units, each operating under separate bargaining contracts with different employers, and further that the transfer sub- stantially altered the scope of the employment enterprise. That case is consequently in- applicable here. It is therefore found that the Respondent refused, on and after October 10, 1952, in viola- tion of the Act, to bargain with the Union by its specific refusals to do so, and by bargaining directly with individual employees respecting conditions of employment and granting wage increases to employees in the unit without notice to and consultation with the Union. It is further found that by those actions the Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. However, I do not find President Cruse's questioning of the employees as to whether or not they wished the Union to represent them, to constitute interrogation of employees in violation of Section 8 (a) (1) of the Act, as alleged. Cruse first directed his inquiry as to the employees' desires to the union steward. Though the steward was an employee, I find that Cruse's question was directed to him in his capacity of a union official. Cruse's questioning of the employees was done pursuant to the suggestion of the steward. Under those circum- stances, I find no unlawful interrogation within the meaning of the cases of Standard-Coosa- Thatcher, 85 NLRB 1358; F. C. Russell Co., 92 NLRB 206; Apex Toledo Corp., 101 NLRB 807. It will therefore be recommended that that allegation of the complaint be dismissed. 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in section III, above, occurring in connection with the operations of the Respondent set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. It has been found that the Respondent has refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit. I shall therefore rec- ommend that the Respondent, upon request, bargain collectively with the Union as such repre- sentative, and, in the event that an understanding is reached, embody such understanding in a signed agreement. It will also be recommended that the Respondent cease and desist from refusing to bargain collectively with the Union; and further, that it cease and desist from interfering with, re- straining, and coercing its employees in the exercise of organizational rights guaranteed in Section 7 of the Act, by refusing to bargain collectively, by bargaining directly and individually with employees, and by unilaterally granting wage increases or by any like or related action. It will further be recommended that the allegation that the Respondent violated Section 8 (a) (1) of the Ac( by interrogation of its employees be dismissed. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Lodge 1017 of District 64, International Association of Machinists, is a labor organiza- tion within the meaning of Section 2 (5) of the Act. 2. Cruse Motors, Inc., Providence, Rhode Island, is engaged in commerce within the meaning of the Act. 3. All mechanics, bodymen, painters, helpers, janitor, motorcycle driver, and stock clerks, but excluding executives, office and clerical employees, guards, professional employees, and supervisors as defined in the Act, constitute a unit of the Respondent's employees appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 4. Lodge 1017 of District 64, International Association of Machinists, A. F. L., was on May 23, September 30, October 1, 6, 10, and 31, 1952, and at all intervening times, and at all times since has been, the exclusive representative of all employees in the aforesaid appro- priate unit for the purposes of collective bargaining, within the meaning of the Act. 5. By refusing, on October 10, 1952, and thereafter, to bargain collectively with the above- named Union, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 8. The Respondent did not commit unfair labor practices by interrogating employees con- cerning their attitudes towards collective bargaining. [ Recommendations omitted form publication.] APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: POLK BROTHERS CENTRAL APPLIANCE 251 WE WILL bargain collectively, upon request, with Lodge 1017 of District 64, inter- national Association of Machinists , A, F. L., as the exclusive representative of all our mechanics, bodymen, painters , helpers , janitor, motorcycle driver, and stock clerks, but excluding executives , office and clerical employees , guards, professional employees, and supervisors as defined in the Act. If an understanding is reached, we will embody such understanding in a signed agreement. WE WILL NOT, by refusing to bargain collectively , by unilaterally changing bargain- able terms or conditions of employment, or by bargaining directly and individually with employees , or by any like or related action , interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization , to form labor organizations, to join or assist Lodge 1017 of District 64, International Association of Machinists, A. F, L., or any other labor organization , to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection , or to refrain from any and all such activi- ties , except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment , as authorized in Sec- tion 8 (a) (3) of the National Labor Relations Act. All our employees are free to become , remain, or refrain from becoming members of the above-named union , or any other labor organization , except insofar as membership may be lawfully required pursuant to Section 8 (a) (3) of the Act. CRUSE MOTORS, INC. Employer. Dated ................ By.............................................................................................. (Representative) (Title) This notice must remain posted for 60 days from the date hereof , and must not be altered, defaced, or covered by any other material. POLK BROTHERS CENTRAL APPLIANCE AND FURNITURE COMPANY and WAREHOUSE AND MAIL ORDER EMPLOY- EES UNION, LOCAL #743, INTERNATIONAL BROTHER- HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS, AFL, Petitioner. Case No. 13-RC-3113. June 1, 1953 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Virginia M. McElroy, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [ Members Houston , Styles, and Peterson ] . Upon the entire record in this case , the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent employees of the Employer. 105 NLRB No. 37.