Witham Buick, Inc.

WITHAM BUICK, INC. 1209 inflow. Assuming that such inflow constitutes either direct or indirect inflow as such terms are defined in Siemons Mailing Service, supra- an assumption which appears to be reasonable-the Employer's oper- ations herein would satisfy the Board's standard for the assertion of jurisdiction over nonretail enterprises. Accordingly, the parties are advised, under Section 102.103 of the Board's Rules and Regulations, Series 8, as amended, that, oil the facts submitted and on the assumption hereinabove made, the Board would assert jurisdiction over the Employer's operations with respect to dis- putes cognizable under Sections 8, 9, and 10 of the Act. Witham Buick, Inc. and Local 470, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Independent. Case No. 4-CA-2574. November 23, 1962 DECISION AND ORDER On August 2,1962, Trial Examiner Jerry B. Stone issued his Inter- mediate 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 certain affirmative action, as set forth in the attached Inter- mediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief and the General Counsel filed a brief in support of the Intermediate Report. 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 Rodgers, Fanning, and Brown]. 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 Inter- mediate Report and the entire record in the case, including the ex- ceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as noted below. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner.' ' The notice appended to the Intermediate Report is hereby amended by deleting the phrase "This notice must remain posted for 60 days from the date hereof," and substitut- ing therefor the phrase "This notice must remain posted for 60 consecutive days from the data of posting" 139 NLRB No. 101. 1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed on March 6 and April 9, 1962, by Local 470, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Independent, herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for the Fourth Region, Philadelphia, Pennsylvania, issued his complaint dated April 27, 1962, against Witham Buick, Inc., herein called the Respondent. In substance the complaint alleged that Re- spondent had engaged in and was engaging in conduct proscribed by Section 8 (a) (1) and (5) of the National Labor Relations Act, herein called the Act, and that such conduct affected and was affecting commerce as set forth in Section 2(6) and (7) of the Act. Respondent's answer as amended at the hearing admits many of the facts pleaded in the complaint, but denies the commission of any unfair labor practices. Pursuant to appropriate notice, a hearing was held before Trial Examiner Jerry B. Stone at Wilmington, Delaware, on June 4 and 5, 1962. All parties were repre- sented at and participated in the hearing, and were afforded the right to present evi- dence, to examine and cross-examine witnesses, to offer oral arguments, and to file briefs. Briefs from the General Counsel and Respondent have been received and considered. Upon the entire record in this case, and from my observation of the witnesses, the following findings of fact, conclusion of law, and recommendations are made: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER For a number of years prior to February 9, 1962, Wilmington Auto Sales Com- pany, herein called Wilmington, a corporation of the State of Delaware, operated as a Buick franchise' dealer at Wilmington, Delaware, and sold and serviced new and used cars. Wilmington also conducted a realty and investment business at the same location. During the year ending September 18, 1961, Wilmington made sales in excess of $50,000 to customers outside the State of Delaware, and made purchases from outside the State of Delaware in excess of $50,000. Wilmington's total sales during the same period exceeded $500,000. Wilmington ceased opera- tions as a Buick and Opel franchise dealer on February 9, 1962, but continued as a realty and investment company at a different location. Witham Buick, Inc., herein called Respondent, a corporation of the State of Delaware, was incorporated on February 5, 1962, and commenced operations as a Buick and Opel franchise dealer at 2100 Pennsylvania Avenue, Wilmington, Dela- ware, on February 19, 1962, and has engaged in the business of selling and servicing new and used cars since that date. The -Respondent has increased the volume of sales as compared to Wilmington Auto by 45 percent during the period of time February 19, 1962, to June 5, 1962. The Respondent estimates that during the year 1962 it will purchase goods and materials valued in excess of $50,000 directly from points outside the State of Delaware. Respondent also estimates that for the calendar year 1962 its gross volume of business will exceed $500,000. I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction in this proceeding. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer as amended at the hearing admits, and it is found that Local 470, international Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America, Independent, is a labor organization within the meaning of the Act. III THE UNFAIR LABOR PRACTICES The major question for resolution here is whether or not the Respondent was legally obligated to recognize and bargain collectively with the Union pursuant to Board certifications that the Union represented the majority of the employees in certain appropriate units. The certifications were issued on October 19, 1961, in Cases Nos. 4-RC-4710 and 4-RC-4745 involving employees of Wilmington. It is undisputed that the Union has requested meetings for the purpose of negotiations 'Buick franchise dealers also hold Opel franchises Both Wilmington and Respondent had an Opel franchise WITHAM BUICK, INC. 1211 concerning the certified units and that the Respondent has declined to recognize or bargain with the Union. It is also undisputed that Respondent, with knowledge of the certification of such bargaining units but without consultation with the Union, consulted some of the employees as to certain changes concerning pay rates and fringe benefits including insurance and vacation rights, and established such changes in a written policy effective on February 19, 1962, the date the employees reported to work on the Respondent's payroll. A. Factual setting, October 11, 1961 to March 27, 1962 October 11, 1961: After a Board-conducted election, held on October 11, 1961, pursuant to a Stipulation for Certification Upon Consent Election (Case No. 4-RC-4710), the Union was certified as the exclusive bargaining representative of all employees in an appropriate unit which consisted of "shop personnel, but ex- cluding salesmen, office and shop clericals, and supervisors as defined in the Act," of Wilmington. After a Board-conducted election, held on October 11, 1961, pursuant to a Stipulation for Certification Upon Consent Election (Case No. 4-RC-4745) the Union was certified as the exclusive bargaining representative of all employees in an appropriate unit which consisted of "salesmen, but excluding shop personnel, office and shop clericals, and supervisors as defined in the Act" of Wilmington. November 1 and 21, 1961: The Union and Wilmington met on November 1 and 21, 1961, for contract negotiations . On or about November 21, 1961, Wilmington Company notified Buick Motor Division, General Motors Corporation, herein called Buick, that it was terminating its franchise agreement.2 The Union was notified of this action on November 21, 1961. Immediately thereafter the employees were notified that the franchise and their employment would be terminated on Decem- ber 31, 1961. William H. Witham, then vice president of Wilmington, attended the November bargaining sessions. November 22 or 23, 1961: William H. Witham notified Buick on November 22 or 23, 1961, of his desire to be considered an applicant for the new dealership. December 11, 1961: William H. Witham secured a commitment from Wilmington on December 11, 1961, that he could lease the property at 211 Pennsylvania Avenue, Wilmington, Delaware? December 13, 1961: William H. Witham filed on December 13, 1961, a formal ap- plication with Buick for the area franchise.4 Submitted with the application were copies of financial and lease commitments. January 26, 1962: Buick advised William H. Witham on January 26, 1962, that he was in a favorable position to get the franchise provided that he had the capital, the facilities, required personnel, and other requirements as previously stated to them by him. Buick advised that the franchise would be effective sometime in February, approximately February 19, 1962.5 January 29, 1962: Wilmington, on January 29, 1962, advised its employees that the expected date of the appointment of the new dealer was February 19, 1962, and that Wilmington's final date of operation would be February 9, 1962. William H. Witham caused to be distributed to the employees at Wilmington, generally by the Wilmington supervisors and himself, applications for employment at the new dealership. This distribution occurred sometime between January 29 and February 9, 1962. Three of the typical applications were distributed on January 29, 1962. February 5, 1962: Respondent , on February 5, 1962, was incorporated in the State of Delaware. William H Witham was the sole owner. February 5 to 9, 1962: During the last week of Wilmington's operation (Feb- ruary 5 to 9, 1962) William H. Witham met with some of the Wilmington employees and discussed his plans for the new dealership, including his wage plan and the fringe benefits (insurance, vacation, etc.). Several employees indicated a preference 2 Whether the original notification to Buick specified the specific time of termination is not clear In any event by agreement between Buick and Wilmington, the latter's franchise was to terminate on some date between December 31, 1961, and February 28, 1962 The date was left open in order to allow Buick time to select a new dealer and to avoid it gap between dealerships ' It was stipulated that "no other premises were available that would have been suitable or ndequnte for Vie operations of a Buick dealership E There were other applicants for the franchise 5 Wilmington had no control over the selection of the dealer. 1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for a different wage plan and William H. Witham indicated that the wage plan could be modified as suggested. February 9, 1962: Wilmington, on February 9, 1962, terminated its Buick and Opel franchise operation and the employment of its shop, parts, sales, and office per- sonnel whose services were employed in the conduct of its franchise operation. Wilmington continued in existence as a corporation engaged only in investment and realty functions at a new location in the city of Wilmington, Delaware. February 12, 1962: The Union, on February 12, 1962, by letter addressed to Wilmington, attention of Mr. William H. Witham, requested a meeting for bargain- ing negotiations between itself and the new dealership. February 14, 1962: Respondent, on February 14, 1962, replied to the Union's request of February 12, 1962, declining, in essence, to negotiate because "since the certification of the Union you represent was to Wilmington Auto Sales Company, it has no effect whatever with respect to Witham Buick, Inc." The Respondent con- tended that it was not a successor to Wilmington. February 19, 1962: Respondent, on February 19, 1962, commenced operations as a Buick and Opel franchise dealer enaged in the retail automotive business, the sale and service of Buick and Opel automobiles, and the sale and service of used cars at 2100 Pennsylvania Avenue, Wilmington, Delaware.6 March 15 and 27, 1962: The Union, on March 15, 1962, in essence reiterated its demand for negotiations concerning the certified bargaining units. The Respondent, on March 27, 1962, in essence, reiterated its declination to negotiate on February 14, 1962, based upon its position that it had no obligation to bargain since it was, not a successor. B. The successorship question 1. Comparative Wilmington and Respondent employee complements Employees of Wilmington who were selected for hiring by Respondent were told at various times that they were to report for work on February 19, 1962. On February 19, 1962, Respondent commenced operations with 18 shop (including parts) employees, and with 6 combination new- and used-car salesmen. The normal complements at Wilmington had included 25 shop (including parts) employees, 6 new-car salesmen, and 3 used-car salesmen. The Respondent commenced opera- tions with 7 clerical and supervisory employees as contrasted with Wilmington's 16 clerical and supervisory employees. Between February 19, 1962, and May 29, 1962, Respondent increased its shop (and parts) employees to 23. Respondent's super- visory and clerical employees numbered 12 at the time of the hearing on June 4 and 5, 1962. 2. Retention of Wilmington employees by Respondent When the Respondent commenced operations on February 19, 1962, 15 of his 1S shop (and parts) employees and 5 of his 6 combination new- and used-car salesmen were former employees of Wilmington who had been employed at the time of the Board's election. On May 29, 1962, 14 shop (and parts) employees, 5 salesmen, and 7 supervisory and clerical employees of the former Wilmington complement were still employed at Witham.? 3. Comparative supervisory structure and personnel of Wilmington and Respondent A composite of the testimony and exhibits reveals the respective comparative super- vision at Wilmington and Respondent to be as herein set out: Wilmington Respondent John F. Porter, Jr.-president and William H. Witham-president and owner. owner. e Respondent's franchise was granted by Buick on the personal qualifications and in- tegrity of owner, William II. Witham. Wilmington's franchise, similarly, had been granted on the personal qualifications and integrity of owner, John F. Porter, Jr 7Respondent's President Witham testified that at the time of the hearing, there were 19 shop employees. It is not clear whether he was speaking of the 23 shop (and parts) employees on the payroll as of May 29, 1962 , minus such employees classified as car delivery, janitor, used-car lot boy, and carwash positions, or whether there had been several layoffs between May 29 and June 5, 1962 Elsewhere his testimony indicated the hiring of mechanics not included on the May 29, 1962 , list. It must be assumed such hirings, if any, were subsequent to May 29, 1962. WITHAM BUICK, INC. 1213 Wilmington Respondent William H. Witham vice president, William J. Carnigan-vice president, general manager (heavy interest in general manager and sales manager. sales area). William J. Carnigan-new-car sales manager, used-car sales manager. Robert Denton-service manager. Robert Denton-service manager. Whitten-body shop foreman. No position. Robert M. Schreiber-parts department Banjamin Vicaro-parts manager. manager. 4. Comparative shop (and) parts personnel job assignments of Wilmington and Respondent A composite of the testimony and exhibits reveals the respective comparative job assignments of the 15 Wilmington employees (shop personnel) hired by Respondent on February 19, 1962, to be as herein set out: Wilmington Respondent James L. Benning-body shop me- James L. Bening body shop. chanic. Frank R. Bramble-mechanic (cus- Frank R. Bramble-used-car mechanic. tomer tune-up). Edward E. Comfort-car delivery. Edward E. Comfort-car delivery. James F. Dodd, Jr.-painter. James F. Dodd, Jr.-body shop painter. Richard F. Dodd-painter. Richard F. Dodd-body shop painter. James J. Dolan-mechanic. James J. Dolan-mechanic, get new car ready. Earnest Eaddy-janitor. Earnest Eaddy-janitor. Orlan L. Eddy-mechanic. Orlan L. Eddy-mechanic. George E. Hazzard-polisher. George E. Hazzard-new- and used-car polisher. Joseph F. Kienle, Jr.-transmission Joseph F. Kienle, Jr.-transmission me- mechanic. chanic. Bernard A. Lynam-mechanic. Bernard A. Lynam-mechanic. James C. O'Neal-counterman (parts). James C. O'Neal, counterman (parts). William J. Saunders-mechanic (body William J. Saunders-body shop. shop). Willie E. William-lot attendant. Willie E. William-used-car lot boy. Peter Ne Smith, Jr -wash rack opera- Peter Ne Smith, Jr.-lubrication. tor. Wilmington's shop personnel employee complement at the time of the election had included in addition to the employees listed above, four mechanics, one grease- rack operator, one counterman (parts), and one driver (chauffeur). Witham, Respondent's president, testified that he abolished (1) one polisher position; (2) a polisher position held by an ex-gardner; and (3) a chauffeur's (driver's) position° Prior to the February 9, 1962, Wilmington termination date, Mechanic Cutchen and Mechanic (transmission) Tilghman had left Wilmington's employment. During the last week of Wilmington's operations, Kienle had been transferred to the mechanic (transmission) position. Respondent on February 19, 1962, hired additionally three employees, who had not worked at Wilmington, in positions as carwash man, mechanic, and in the new- car department (polisher).9 Between February 19, 1962, and April 27, 1962, Respondent hired other employees, none of whom had worked at Wilmington. Of the employees hired, one was assigned as a counterman in the parts department, and two were hired as mechanics. Between April 27 and May 29, 1962, Respondent hired additional employees, none of whom had worked at Wilmington. One of these employees was hired as a body shop man and one as a mechanic second class. 8 The Respondent also abolished a position described as switchboard operator. This position is not within either of the appropriate units referred to in this case Y The record reveals that Wilmington had four polisher positions General Counsel's Exhibit No 4-A referring to Respondent's employees reveals no position designated as polisher ; however, Respondent's President Witham testified that employee Howard was a polisher-new- and used-car department. By a composite of testimony and job de- scription set forth as to other employees and a process of elimination , it appears that Willie Waterman, a new employee, was hired as a polisher. 1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Former Wilmington employee Saunders, a mechanic, had left the employment of the Company by April 27, 1962. Respondent's President Witham had planned and had so indicated to the me- chanics at Wilmington during the week of February 5 to February 9, 1962,10 that he intended to change from specialist mechanic to overall mechanic. He also testi- fied to the effect that this plan had only been effectuated to a degree, that his aim, however, was to develop mechanics with overall ability. Respondent, in order to obtain the franchise, had to demonstrate that it had the required personnel. Re- spondent had, therefore, hired mechanics on its knowledge of their abilities and on the basis of availability. Respondent still has mechanic specialists, although it has hired some general mechanics. At the time of his meeting with the five mechanics, Respondent President Witham advised that he was instituting a guaranteed system of work whereby an employee would have to correct any of his work not properly done. This system was instituted on February 19, 1962. Wilmington, in addition to the service manager, had employed two service sales- men,xl one of whom was a full-time service salesman, and one who was on the schedule desk. Respondent, in addition to employing the full-time service salesman, has added a new full-time service salesman, and a new man to handle the schedule desk.12 Wilmington's service department operated on an indirect service followup system. Respondent instituted on February 19, 1962, a complete service analysis where complete shop orders were sent to Flint, Michigan (Buick) for analysis and for help. Mechanics employed by Wilmington and Respondent owned or own their personal work tools; the larger tools and heavy equipment were and are provided by the dealership. Parts employees were included in the shop personnel unit certified in Case No. 4-RC-4710. At Wilmington the two parts employees were supervised by Robert M. Schreiber. One of the two parts employees (countermen) was James C. O'Neal, who was employed by Respondent on February 19, 1962. The Wilmington Parts Manager Robert Schreiber and Counterman Elias L. Stevens were not employed by Witham. The ultimate complement at Witham of parts personnel included Ben- jamin Vicaro, parts manager, and James J. Breslin as counterman. The evidence reveals that Wilmington stocked a limited type of parts, maintained no inventory control, and included accessories affixed to cars as belonging to parts inventory. Witham installed a new electronic parts inventory and order system with daily post- ing, maximum and minimum established number of specific parts, expanded the type of parts kept in inventory, and recorded accessories affixed on cars as being affixed to cars and not as just accessories. Employee Breslin was hired to maintain this new inventory system which included an IBM-type card for use in ordering parts. The function of the parts department remained similar in purpose to that at Wilmington. This function was to supply parts to Respondent's mechanics for service to repair cars, and to supply parts to outside purchasers and to independent garages. 5. Comparative sales job assignments of Wilmington and Respondent Wilmington had a split sales force with six new-car salesmen under new-car sales manager, Harold J. Carnigan, and three used-car salesmen under used-car sales manager, William F. Metten. Vice President and General Manager Witham con- centrated his efforts in the field of sales. The right, but not the responsibility, existed that any salesman could sell either new or used cars. Very few of the salesmen, however, actually sold cars in the category to which they were not assigned. Respondent commenced operations on February 19, 1962, with six combination new- and used-car salesmen under the supervision of Harold J. Carnigan, general manager, vice president, and sales manager.13 As the description of this job implies these combination salesmen duties were to sell new and used cars. 10 Respondent's President Witham testified in effect that he talked with five of the mechanics about his plans, wage rates, and fringe benefits during the hot week of Wilming- ton's operation (February 5 to 9, 1962) By a composite of the exhibits and testimony, and a process of elimination, it is revealed that at least some of these five mechanics were included in the employees who reported to work for Respondent on February 19, 1962. 11 These employees are not within the classification of the employees in either of the bargaining units involved herein. 12 Respondent President Witham testified that the replaced schedule deskman had been a serious irritant to the shop personnel. u Five of these salesmen were former Wilmington salesmen. WITHAM BUICK, INC. 1215 6. Comparative pay rates and fringe benefits of Wilmington and Respondent Respondent, compared to Wilmington, instituted certain changes concerning pay rates, insurance benefits, and vacation rights upon its commencement of operation on February 19, 1962. The pay rates and insurance benefits were more favorable to the employees than the ones in existence at Wilmington. The vacation rights, if viewed in the abstract, were more beneficial to employees than those in existence at Wilmington. The record is barren as to the length of service of the old Wilming- ton employees, and it may be that they would have enjoyed the same length of vacation currently under either the Wilmington or Respondent's plan. Their vaca- tion pay in any event would be on a different basis. New employees, it is clear, received more favorable vacation rights under Respondent's plan. Set out herein is a comparison of such pay rates and fringe benefits. Pay Rates and Fringe Benefits Wilmington Respondent Pay Rates (Mechanics) 14 Pay Rates (Mechanics) $1.40 to $2 per hour: 15 45 percent $2 per hour: 50 percent mechanics/ mechanics/55 percent house flat rate 50 percent house flat rate 1 week settle- (record does not reveal whether 1 week merit. or more for adjustment of flat rate with hourly pay). Insurance (Mechanics and salesmen) Insurance (Mechanics and salesmen) Did not provide free life insurance. $2,000-at 60 year $1,000; 65, $500. Company pays for life insurance. Employee pays costs for accident in- Company pays health and accident surance-however, gets it for less (than insurance with increase of benefits from others). $15 per week to $30. Medical and hospital insurance for Medical and hospital insurance paid employees paid by Company. by Company. Vacation (Mechanics and salesmen) Vacation (Mechanics and salesmen) 1 to 3 years' employment=l week's 1 year employment=2 weeks' vaca- vacation. tion. 3 years=2 weeks' vacation. Weekly vacation pay-40 hours at Weekly vacation pay-1/50 of annual hourly rate. earning. Miscellaneous Respondent instituted dinner meetings with employees wherein they were en- couraged to bring their problems to management. The evidence reveals that Re- spondent would listen to and consider employee grievances wherein at Wilmington the owner was not accessible for such discussion.ie In addition to the foregoing it is noted that (1) Respondent commenced opera- tions as a new corporation 17 with a written policy governing most terms and condi- tions of employment as contrasted to the lack of such written policy at Wilmington; 14 The record does not reveal clearly the salesmen's method of pay Respondent Presi- dent Witham testified as to vacation pay, however, that at Wilmington salesmen's vacation pay was based on a flat rate of hourly pay tunes 40 hours per week The record reveals that Respondent now awards bonuses to salesmen with highest sales 15 As best gleaned from the record it appears that mechanics were guaranteed a dollar amount per hour. A flat rate determination per job with 45 percent of the labor cost for the mechanic and 55 percent of the labor cost for the Company was used to compute wages, and the employee received the guaranteed wage or the flat rate whichever was highest during the settlement term. It is not clear at Wilmington whether the settlement was on a 1-week or 2-week term. At Respondent's the percentage of flat rate was changed. 10 The record also reveals criticism of Wilmington by Respondent President Witham re- lating to managerial efficiency wherein Wilmington retained certain employees in certain positions because of years of service and loyalty. 17 The name Wilmington Auto Sales Company was not available since Wilmington con- tinued in existence for other functions. Respondent also states he would not have selected such name because of the reputation associated with the name. The record reveals no financial connection between Wilmington and Respondent. 1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (2) Respondent, after qualification, writes casualty insurance, as Wilmington did; 18 (3) Respondent advertised as a "new" dealer; 18 (4) Respondent utilizes Buick schools for its employee training wherein the record reveals no utilization of such schools, although available, by Wilmington. The evidence reveals that Wilmington, pursuant to its agreement with Buick, could have turned its inventory of new cars, parts, and accessories back to Buick. By agreement between Buick, Wilmington and Respondent, Respondent purchased the new-car inventory (32 new cars), parts, and accessories from Wilmington. This eliminated the necessity of packaging and shipping such items from Wilmington, and the reshipment of substantially the same items from Buick to Respondent. Re- spondent in addition purchased some furniture and office equipment, 90 percent of its heavy equipment from Wilmington, and 5 (of 30) of Wilmington's used-car inventory. Respondent purchased additional new cars, parts, and accessories from Buick and also purchased some additional office equipment and furniture. In the latter category would be included items such as the new inventory system equipment. A new-car purchaser of a Buick receives a coupon entitling the purchaser to a 1,000-mile or 30-day free checkup. This coupon is redeemable at any Buick dealer and is valued at $15. To avoid bookkeeping problems with Buick, and because customers were local, Respondent agreed to accept Wilmington customer coupons and to submit them to Wilmington instead of Buick. Wilmington in turn paid the $15 to Respondent. Warranty jobs on used cars were handled similarly. Respondent, when operations were commenced on February 19, 1962, in relation to Wilmington assumed no obligations, purchased no accounts receivable, assumed no liability or other insurance; Respondent assumed no obligations to pay accounts payable. Respondent purchased new city-business licenses and was considered as a new employer for workmen's compensation purposes Where Wilmington purchased its new cars by cash, Respondent purchased on a floor plan wherein the bank pays for the cars as shipped and Respondent pays the bank for the particular car sold when sold. The Respondent handles customer financing of cars primarily through its placement of chattel mortgages with the Bank of Delaware. If the customer defaults the ownership of the car passes to the bank. A secondary outlet with GMAC is rarely used by Respondent. Under the GMAC financing arrangement, Respondent must repurchase the loan contract if the customer defaults in payment.20 Wilmington principally used the GMAC financing arrangement. Wilmington used a secondary line of financing with Com- mercial Credit Corporation, and a third line of financing with the Farmers Bank in Newark. Summary The differences and similarities have been carefully considered to determine whether the facts concerning Respondent and Wilmington constitute a substantial change or whether they constitute a substantial continuation of the same type of enterprise. The facts reveal that such changes as have occurred are not substantial and that the Respondent has continued substantially the same enterprise as existed at Wilmington. In making this determination all the facts as heretofore set out have been con- sidered. Respondent, the same as Wilmington, has operated a Buick franchise dealership, at the same location, and under a local owner, performing the same type service and functions. Basically the same type and lines of supervision have been continued by Respondent as had existed at Wilmington. There has been consolida- tion and elimination of certain supervisory positions as to the selling function at Respondent as compared to Wilmington. The elimination of two supervisory posi- tions in the selling function has been accomplished by the consolidation of such functions in one man (Mr. Carnigan, vice president, general manager, and sales manager). Similarly one supervisor has been eliminated in the service function by leaving the supervision of body shop employees under the service manager. The other aspects of supervision have been continued in the same manner. Respondent, as Wilmington, has the following main breakdown of employees, shop and parts department, service salesmen, salesmen, and office employees. Respondent, as com- pared to Wilmington, has made certain minor changes. Many of the employees Is At Wilmington , Office Manager Thomas wrote casualty insurance , and at Respondent's, Owner Witham writes such insurance. 1e A brother of Porter, Wilmington's owner, sells and advertises as a "Porter" family dealer in another town 20 Respondent President Witham referred to this in his testimony as "the repurchase of paper." WITHAM BUICK, INC. 1217 now work on or sell new and used cars whereas at Wilmington they worked on or sold only one category-new or used cars. Respondent, as compared to Wilmington, has continued basically the same super- visors in the same areas of supervision. The supervisory changes, in essence, com- pare to a promotion of Mr. Witham from vice president to president (and owner), and to a promotion of Mr. Carnigan from sales manager to vice president and with a continuation of his old duties as expanded. A new parts manager is now employed, but as at Wilmington, the parts manager supervises only two employees. A new office manager is now employed over the office force. The functions and purposes of the various departments have continued at Respond- ent as they had at Wilmington. The Respondent intends to develop the use of "overall" mechanics, but at the initial outset on February 19, 1962, and at the time of the hearing Respondent has continued the use of a number of "specialist" me- chanics even though some of the newly hired mechanics are "overall" mechanics. Respondent's parts department employees are required to maintain a daily inventory of parts, and to use IBM-type cards as compared to a nonsystematic control of parts before. Respondent has continued with substantially the same employees personnel. In essence, Respondent, with substantially the same employees as Wilmington, utilizes and employs his employees on the same type of work as they performed at Wilmington. It is considered that the reassignment of personnel as previously re- flected is consonant with normal reassignment in any unit. There is no real variance in job duties and functions in the work required to service or sell a new or used car as to work required to service or sell both. Neither is there more than a superficial variance in the work of the parts department employees. This variance would ap- pear to be the same type that occurs in any operation that grows or improves and in no sense would appear to change community of interest or employees. In the factual pattern of this case it is not considered that bookkeeping changes, employment of an additional service salesman, different personnel on the service department scheduling desk, different insurance, etc., different financing arrange- ments by the Company in purchasing cars, or methods of inventory, reveal a sub- stantial change. Respondent President Witham testified with respect to his book- keeping changes, that as "individual businessmen we handled quite a few things differently." As indicated by Respondent's president, these matters are properly within the area of management prerogative. Contrary to Respondent's contention that these management prerogative differ- ences reveal a change from Wilmington so as to refute the successorship theory of General Counsel, it is found that such differences underscore the continuation of a "local owner" Buick dealership. Respondent, even as Wilmington before, has certain areas of local management prerogatives. Respondent, as compared to Wilmington, operated with certain pay and fringe benefit differences and with a more amenable relationship as to the handling of employee grievances. It is obvious that Respondent's wage rates and fringe benefits do not change the type of employing enterprise or the units involved. In fact, such changes as devolved are in the same general area as had existed at Wilmington. Thus wage rates at both consisted of dollar amounts per hour contrasted to a flat rate percentage, insurance benefits were offered at both, although of different degree. The Trial Examiner has considered Respondent's contention that its change in em- ployment policies and employer-employee relationship as to handling of grievances, ideas, suggestions, problems, salesmen dinners, and bonuses, resulting in the elimina- tion of the discontent that existed at Wilmington reveals that it is not a successor. I am convinced, in the factual pattern of this case, that the test is the measurement of structural differences rather than the differences of policy application that may result from the individual owner or supervisors. Employees at both Wilmington and Respondent look to the local management for the processing of their grievances, ideas, suggestions, problems, salesmen dinners, and bonuses. The employing struc- ture at Respondent remains the same as at Wilmington regarding the employer- employee relationship. Board law is clear that the question of successorship depends upon whether the employing enterprise remains substantially the same. The determination of whether the enterprise remained substantially the same must be based upon an overall evalu- ation of the facts, and not upon a mechanical tabulation of the separate facts of this case. Depending upon the similarities and dissimilarities the pursuasive facts in different cases vary. The evidence in the instant case reveals and it is found, that Respondent has operated an enterprise since February 19, 1962, which as compared to Wilmington, is substantially the same enterprise, same organizational structure, with the same type supervisors and employees, and the same supervisory and em- ployee personnel, engaged in the same functions and duties, and is a successor to Wilmington within the meaning of Board law. 1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The determination of Respondent as a successorship is supported by similar find- ing in Board cases which concerned factual situations which may vary as to some particular facts, but which contain substantially the same grouping of similar facts 21 The Appropriate Units The complaint alleges, the answer as amended at the hearing admits, the Board so certified on October 19, 1961 (in Case 4-RC-4710, see 1. below, and in Case 4-RC-4745, see 2. below), and it is found that the following units are the appro- priate units for purposes of collective bargaining within the meaning of the Act: 1. Shop personnel, but excluding salesmen, office and shop clericals, and supervisors as defined in the Act. 2. Salesmen, but excluding shop personnel, office and shop clericals, and supervisors as defined in the Act. The Refusal To Bargain The Union by letter of February 9, 1962, addressed to "Wilmington Auto Sales Co., Attention: Mr William Witham" and commencing with the salutation "Dear Mr. Witham," advised Mr. Witham of its certification as bargaining representative on October 19, 1961, as to the shop employees and salesmen, and requested the successor firm, of which Mr. Witham was to be a part, to meet to negotiate a contract covering the terms and conditions of employment of employees in the respective certified units. The facts reveal that Mr. Witham was cognizant of the certification of the respective units by virtue of his appearance at bargaining sessions on behalf of Wilmington with the Union on November 21, 1961. On February 14, 1962, Mr. William H. Witham responded to the Union stating his position that Respondent was not a successor to Wilmington in any respect, and that certification of the Union for employees at Wilmington had no effect whatever with respect to Respondent, and that he saw no purpose to be served by the meeting requested by the Union. On March 15, 1962, the Union made another request for a meeting to negotiate a contract covering terms and conditions of employment of the employees covered by the October 19, 1961, certification. By letter dated March 27, 1962, Respondent replied to the Union's March 15, 1962, letter stating that Respondent was not a successor of Wilmington and did not believe it had any obligation to bargain pursuant to the Union's certification at Wilmington. Respondent President Witham met during the week commencing on February 5, 1962, with five mechanics, after hours and away from Wilmington, to discuss with them what plans had been formulated and what scales of pay had been established in his mind for the new dealership. As the plans were discussed, several mechanics mentioned that they would prefer that wages be based on a guaranteed wage rate of $2 per hour coupled with 1 week settlement against flat rate as contrasted to his plan of $2.25 per hour guarantee, 2-week settlement against flat rate of 50 percent for Company and 50 percent for employee. Witham informed the mechanics that this could easily be worked out, and that it was a matter of settlement of I week or 2 weeks, and that the basic rate was determined on that, whichever they preferred. On 21 Cruse Motors, Inc , 105 NLRB 242 • The facts in this case are not only factually simi- lar but it is noted that Cruse, like Respondent, was a new corporation commencing to run an automobile franchise dealership, wherein the old franchise dealer continued In exist- ence at a different location The instant case has more persuasive facts in that O'Keefe, Cruse's predecessor, continued in the automobile field. Auto Ventshade, Inc, 123 NLRB 451: Predecessor Ventshade terminated operations on May 3, 1957, and Auto Ventshade, Inc, the successor, commenced hiring on May 20, 1957. In the instant case, Respondent commenced operations 1 week after the predecessor ceased operations In the meantime the predecessor's employees who were hired had termination pay of 1 week. Other cases with facts substantially similar to the Instant case, see Ugite Gas Incorpo- rated, 126 NLRB 494; Royal Brand Cutlery Company, 122 NLRB 901 ; and Colony Mate- rials, Inc, 130 NLRB 105 (The factual pattern of the Colony Materials case is prac- tically identical to the instant matter ) I have considered but do not concur with Respondent's contention that the facts in NLRB v. Alamo White, 273 F. 2d 238, are persuasive that a successorship does not exist in the instant case. Unlike the aforementioned case, Respondent, like predecessor Wilmington, has continued as a local Buick franchise dealer. In the Alamo White case, the alleged successor changed from a constituent part of a large corporation to an inde- pendent enterprise. WITHAM BUICK, INC. 1219 February 19, 1962, Respondent commenced operations with the wage-rate plan sug- gested by the employees. The Respondent's wage-rate plan varied from, and its insurance benefits were greater than, those extended by Wilmington. The Respondent, as contrasted to Wilmington, operated with a written policy covering most conditions of employment. It is clear then that the Union certified as exclusive bargaining representative for the employees in the appropriate units, made proper negotiations requests, and the Respondent has refused to negotiate and has ignored the Union as bargaining repre- sentative. With knowledge of the Union's status the Respondent, as compared to Wilmington, and without consultation with the Union, but with direct consultation with prospective employees in groups and individually, consummated its direct deal- ings with the employees by altering wage rates and fringe benefits when it commenced operations on February 19, 1962. It is therefore concluded and found on the basis of the entire evidence that on and after February 14, 1962, Respondent refused to bargain collectively with the certified Union as the exclusive representative of Re- spondent's employees in the appropriate units 22 It is found that by such refusal to bargain with the Union on and after February 14, 1962, and by the establishment of altered wage rates and fringe benefits, without consultation with the Union but with group and individual consultation with employees, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) of the Act,23 and it is further found that by such conduct Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act within the meaning of Section 8(a) (1) thereof. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described 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, it will be recommended that Respondent cease and desist therefrom and take certain affirma- tive 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 units. It will therefore be recommended that the Respondent, upon request, bargain col- lectively with the Union as such representative, and in the event that an under- standing 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, restraining, and coercing its employees in the exercise of organiza- tional rights guaranteed in Section 7 of the Act, by refusing to bargain collectively, by bargaining directly and individually with employees, and by making wage-rate changes or fringe benefit changes without bargaining collectively therefor with the Union, or by like or related action. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the following is made: CONCLUSIONS OF LAW 1. Local 470, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, Independent, is a labor organization within the meaning of the Act. 2 Witham Buick, Inc., is engaged in commerce within the meaning of the Act. 3. Shop personnel, but excluding salesmen, office and shop clericals, and super- visors as defined in the Act, constitute a unit of the Respondent's employees appro- 22 By virtue of the certification the Union is the exclusive representative, for the pur- poses of bargaining, of the employees in the certified unit The obligation to bargain devolves upon the successor in title It is found that the Union is and has been since October 19, 1961, the exclusive representative of the employees in the previously referred to appropriate units for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 22 Cruse Motors, Inc, 105 NLRB 242. 672010-63-vol. 139-78 1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Salesmen, but excluding shop personnel, office and shop clericals, and super- visors 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. 5. Local 470, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, Independent, was on October 19, 1961, and at all times since has been, the exclusive representative of all employees in the aforesaid appro- priate units for the purposes of collective bargaining, within the meaning of the Act. 6. By refusing on February 14, 1962, 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. 7. 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. 8. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER 24 Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case, it is recommended 25 that Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Local 470, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Independent, as the exclusive representative of all the employees in the appropriate bargaining units 'herein set out: I Shop personnel, but excluding salesmen, office and shop clericals, and supervisors as defined in the Act. 2. Salesmen, but excluding shop personnel, office and shop clericals, and supervisors as defined in the Act. (b) Interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act, by refusing to bargain collectively, by bargain- ing directly and individually with employees, or by changing wage rates, insurance or other fringe benefits without bargaining collectively therefor with the Union, or by any like or related action. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request, bargain collectively with Local 470, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Independent, as the exclusive representative of the employees within the appropriate units described above with respect to rates of pay, wages, hours of employment and other condi- tions of employment, and if an understanding is reached, embody such under- standing in a signed agreement. (b) Post at its premises in Wilmington, Delaware, copies of the notice attached hereto marked "Appendix A." 26 Copies of said notice, to be furnished by the Regional Director for the Fourth Region, shall, after being signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof and main- tained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. 24 In the event that this Recommended Order be adopted by the Board, the word "Order" shall be deemed substituted for the words "Recommended Order " ^ And the word "ordered" shall be substituted for the word "recommended." 28 In the event that this Recommended Order be adopted by the Board, the words "A De- cision and Order" shall be substituted for the words "A Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order be enforced by a decree of a United States Court of Apepals, the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order." TRUMBULL ASPHALT COMPANY OF DELAWARE 1221 (c) Notify the Regional Director for the Fourth Region, in writing, within 20 days from the date of this Order , what steps the Respondent has taken to comply herewith.27 In the event that this Recommended Order be adopted by the Board , this provision shall be modified to read : "Notify said Regional Director , in writing, within 10 days from the date of this Order what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL bargain collectively, upon request , with Local 470, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Independent, as the exclusive representative of all our employees in the bar- gaining units described below with respect to rates of pay, wages, hours of em- ployment, and other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining units are: Shop personnel, but excluding salesmen, office and shop clericals, and supervisors as defined in the Act. Salesmen, but excluding shop personnel, office and shop clericals, and supervisors as defined in the Act. WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act by refusing to bargain col- lectively with the above-named Union or by bargaining directly and individually with employees , or by changing wage rates, insurance or fringe benefits, with- out bargaining collectively therefor with the Union, or by any like or related action. WITHAM BUICK, 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. Employees may communicate directly with the Board's Regional Office, 1700 Bankers Securities Building, Walnut and Juniper Streets, Philadelphia, Pennsylvania, Telephone Number, Pennypacker 5-2612, if they have any questions concerning this notice or compliance with its provisions. Trumbull Asphalt Company of Delaware and Petroleum, Tire, Automotive Service and Parts Drivers, Warehousemen, Serv- ice Station Attendants, Helpers, Bulk Plant, Parking Lot and Ramp Employees, Local Union No. 977, International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case No. 18-CA-13929. November 23, 1962 DECISION AND ORDER On March 23, 1962, Trial Examiner Arthur E. Reyman issued his Intermediate Report herein, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommend- ing that it cease and desist therefrom and take certain affirmative 139 NLRB No. 97.