Spitzer Akron, Inc.

114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Spitzer Akron, Inc. and Auto Mechanics Local 1363, District 54 of the International Association of Ma- chinists and Aerospace Workers , AFL-CIO. Case 8-CA-6177 January 26, 1972 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On July 21, 1971, Trial Examiner Eugene F. Frey issued the attached Decision in this proceeding. There- after, the Respondent and the General Counsel filed exceptions and supporting briefs, and the Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs' and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order, as modified herein.' The Trial Examiner found that on September 22, 1970, at least 10 out of about 12 or 13 employees went on strike, that the strike was an unfair labor practice strike, and that the strike was still in progress at the time of the hearing herein on May 17, 1971, with the sanction of the Union. On March 26, 1971, the Union notified the Respondent, by letter, that all 10 strikers identified therein offered unconditionally to return to work. The Respondent, subsequently, on an unspecified date, sent letters to all strikers requesting that they return to work. On an unspecified evening after receipt of these letters, 8 of the 10 strikers, accompanied by Samuel Ramnytz, union business representative, re- ported to Respondent's president Allen Spitzer, whereby they were advised that he (Spitzer) was unable to interview each of them that night without the pres- ence of the service director, who had left for the evening. Arrangements were set up to interview each of the strikers when they appeared for picket duty the following day. During the course of these interviews, Spitzer required the strikers to complete and sign new employee application forms. Spitzer advised Ramnytz that the strikers were new employees and couldn't be hired without completing these application forms. The strikers thereafter continued the strike. ' As the record, exceptions, and briefs in our opinion adequately present the issues and the positions of the parties , the Respondent's request for oral argument is hereby denied ' Member Jenkins does not rely on the Trial Examiner 's conclusion that Respondent had no "good faith doubt" of the Union's majority On an unspecified date, Union's counsel received a letter from the Respondent's attorney stating that the strikers were not required to execute new application forms, explaining that the Respondent merely wanted to determine when the strikers were available to return to work. Subsequently, on an unspecified date, some of the strikers arranged to return to work during private interviews with Spitzer and his assistant, Norman Had- ton. On a date that Andy Park agreed to return to work, he was ill and reported off sick. Thereafter, a later date for his return was arranged. However, he subsequently fractured his leg and was unable, as of the hearing date, to resume employment. John Hall arranged to return to work on May 17, 1971, after receiving a letter on May 12, 1971, from the Respondent offering him employment as a flat-rate me- chanic. However, Hall was unable to report to work because he appeared as a witness on behalf of the Gen- eral Counsel on the date that he had arranged to re- sume employment. At the conclusion of his testimony, Hall agreed to report for work later that same after- noon pursuant to the direction of the Respondent's counsel. According to Ramnytz, some of the strikers involved in the instant proceeding had actually 're- turned to work prior to the hearing. In the portion of his Decision entitled "The Remedy" the Trial Examiner set forth the proper stan- dard for determining entitlement to reinstatement and backpay when he stated: "As Respondent employees have been engaging in an unfair labor practice strike, they are entitled to reinstatement upon their uncondi- tional application for reinstatement, and to backpay from the date of such application to the date of an unconditional offer of reinstatement." However, he then found that, although the September 22, 1970, strike was an unfair labor practice strike, the unfair labor practice strikers need not be offered reinstatement because they remained on strike after receiving letters from the Respondent requesting that they return to work. We do not agree with the Trial Examiner that the strikers need not be offered reinstatement. When Spitzer required the strikers to sign an application form as a new employee before he would return them to work and notified Ramnytz that the strikers were to be considered new employees, Respondent was not mak- ing the unconditional offer of immediate reinstatement contemplated by the Act. Indeed, rather than abandon the strike and resume their employment under this imposed condition, the strikers chose to continue their strike against the Respondent. Accordingly, on the ba- sis of the record evidence, we find the strike was con- tinued and prolonged as a result of the Respondent's insistence on the condition that the strikers return to work as newly hired employees. Since the Respondent's offer of reinstatement was not unconditional, the strik- 195 NLRB No. 24 SPITZER AKRON, INC. 115 ers have no legal obligation to resume work until such cers, agents, successors, and assigns, shall take the ac- time as the Respondent accedes to their demands or tion set forth in the Trial Examiner's recommended until they terminate the strike. Moreover, as unfair Order, as herein modified: labor practice strikers they remain entitled to reinstate- 1. Add the following after paragraph 2(b): ment without regard to whether replacements have "(c) Offer to each of those strikers to whom it has not been placed in their jobs and whether said reinstate- heretofore made an unconditional offer of reinstate- ment requires the dismissal of such replacements. ment immediate and full reinstatement to his former We note, however, that some of the strikers arranged job or, if that job no longer exists, to a substantially to return to work after the Union was advised by the equivalent position, without prejudice to his seniority Respondent's counsel that said application forms were or other rights and privileges, dismissing, if necessary, required merely to determine the striker's availability any replacement employee." for work, rather than to condition their return as a 2. Substitute the following for the Trial Examiner's newly hired employee. In this regard, employees Park paragraph 2(c) and reletter the subsequent paragraphs and Hall received subsequent unconditional offers from accordingly: the Respondent to return to work. Park agreed to re- "(d) Make whole all of its employees who went on sume his employment, but he was prevented from do- strike on September 22, 1970, for any loss of earnings ing so because of an injury. Hall agreed to return to they may have suffered from the time of their uncondi- work during the hearing. However, the evidence does tional offer to return to work to the date when Re- not reveal whether any of the other strikers received spondent unconditionally offers them reinstatement to similar unconditional offers of reinstatement, or their former or substantially equivalent employment." whether they have arranged, as did Hall and Park, to 3. Substitute the attached notice for the Trial Ex- return to work. Since the Respondent's initial offer of aminer's notice. reinstatement was conditional and since the evidence does not disclose that any strikers except Hall and Park have received subsequent unconditional offers of rein- statement, we find that the Trial Examiner erred in concluding that the remaining strikers, if any, need not be offered reinstatement. Accordingly, we shall modify the Trial Examiner's recommended Order and require Respondent to make unconditional offers of reinstate- ment to the remaining strikers. In this regard we find that the strikers' unconditional offer to return to work on March 26, 1971, remains outstanding and it is not necessary that they make further application. Likewise the Trial Examiner's finding that the strik- ers are entitled to backpay only from the date of their unconditional offer to return to work to the date they received Respondent's letters requesting they return to work to the date they received Respondent's is clearly erroneous. For the Respondent's request by letter, al- though unconditional, was superseded by its demand that the strikers be interviewed and complete new em- ployee applications. Thus, contrary to the Trial Ex- aminer's finding, the letters did not toll backpay. Therefore, the strikers are entitled to backpay from the date they unconditionally requested reinstatement until the Respondent, in fact, unconditionally offers them reinstatement and we shall so provide. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that the Re- spondent, Spitzer Akron, Inc., Akron, Ohio, its offi- APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT make unilateral changes in wages, rates of pay, hours of employment, or other terms and conditions of employment of our em- ployees in the appropriate unit described below, or fail or refuse in any other manner to recognize, meet, or bargain collectively with Auto Mechanics Local 1363, District 54 of the International As- sociation of Machinists and Aerospace Workers, AFL-CIO, as the exclusive bargaining representa- tive of our employees in said unit, which is de- scribed as follows: All auto mechanics, body repairmen, paint- ers, their apprentices and helpers, and lu- brication men, employed in our place of busi- ness in Akron, Ohio, excluding all office clerical employees, salesmen, parts depart- ment employees, garage men, and all guards, professional employees and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of any of the rights guaranteed to them by Section 7 of the Act, 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 the proviso to Section 8(a) (3) of the Act. 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL, upon request, recognize, meet, and bargain collectively with the above-named Union as the exclusive bargaining representative of all our employees in the above-described unit with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employ- ment, and, if an understanding is reached, embody such understanding in a signed agreement. WE WILL, upon request, cancel any changes of benefits or working conditions of our employees which we made on September 4, 1970, or later, and which may have resulted in financial or other detriment to our employees and reimburse them for any financial losses they may have suffered thereby. WE WILL offer to those strikers to whom we have not heretofore made an unconditional offer of reinstatement, immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any replace- ment employees. WE WILL make whole all of our employees who went on strike on September 22, 1970, for any loss of earnings they may suffered from the time of their unconditional offer to return to work to the date that we offer them reinstatement to their former or substantially equivalent employment. SPITZER AKRON, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 1695 Federal Office Building, 1240 East Ninth Street, Cleveland, Ohio 44199, Telephone 216-522- 3715. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE EUGENE F. FREY, Trial Examiner: This case was tried before me at Akron, Ohio, on May 17 and 18, 1971, following pretrial procedures in compliance with the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq. (herein called the Act), and involves the issues (1) whether Respond- ent, Spitzer Akron, Inc., is a successor employer to East Town Chrysler-Plymouth, Inc. (herein called East Town), party to a collective-bargaining contract with the above- named Union,' and bound to recognize and bargain with said Union as statutory bargaining agent of employees in an ad- mitted appropriate unit, and (2) whether Respondent refused to bargain with said Union as such agent in various ways in violation of Section 8(a) (5) and (1) of the Act, thereby caus- ing employees in said unit to engage in a strike protected by the Act.' All parties appeared and participated in the trial by counsel or other representative. At close of the testimony all parties waived oral argument but I granted them an oppor- tunity to file written briefs with me on or before June 25, 1971.' Briefs were received by me from Respondent on July 1, 1971, and from General Counsel on July 6, 1971, after an extension of time for filing was granted by the Chief Trial Examiner. After due consideration of the briefs and the record herein, I issued this Decision on July 16, 1971, for release to the parties in the usual course. Upon the entire record in the case, including my observa- tion of the witnesses on the stand and consideration of argu- ments made during the trial and in written briefs, I make the following: FINDINGS OF FACT I THE BUSINESSES OF RESPONDENT AND EAST TOWN, AND STATUS OF THE UNION Respondent is an Ohio corporation with its principal office and place of business in Akron, Ohio, where it is in the business of retail and wholesale selling and servicing of au- tomobiles, parts, and accessories . In the year beginning Sep- tember 1, 1970, Respondent has a reasonable expectation of gross income from such sales and service exceeding $500,000 a year, and in the past year it has had direct inflow of finished products valued in excess of $50,000. Respondent admits, and I find, that it is and has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. At all material times herein East Town has been an Ohio corporation with its principal office and place of business located in Akron, Ohio, where it engaged up to August 22, 1970, in the same type of business as Respondent. In the year prior to August 1970, East Town received gross income from said business in excess of $500,000, and had an annual direct inflow of finished products in excess of $50,000. I find that East Town has been at all material times an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the act. II THE ALLEGED UNFAIR LABOR PRACTICES A. Background Events In 1964 members of Akron Automobile Dealers Bargain- ing Group executed a collective-bargaining contract with Lo- cal Lodge 762 of IAM, which expired December 8, 1967. One signatory of the contract was Arnett, Inc., which in that period operated a Chrysler-Plymouth auto sales and service agency at 457 East Market Street, Akron, Ohio, the same location now occupied by Respondent. An amendment to said contract executed by the same parties on the latter date The parent organization of the Union will be referred to herein as IAM The issues arise on an amended complaint issued March 12, 1971, by the Board's Regional Director for Region 8, after Board investigation of a charge filed by the Union on January 8, 1971 ' After close of the hearing the parties filed a joint motion and stipulation on June 17, 1971, for correction of the official transcript The record is hereby corrected and amended in accordance with the joint motion and stipulation SPITZER AKRON, INC extended that document until August 31, 1970. Neither Re- spondent nor East Town were or are members of the Group or were signatories to that contract or its extension. On Au- gust 27, 1968, East Town executed a separate collective-bar- gaining agreement with Local Lodge 762 covering employees in the following unit which is hereby found appropriate for purposes of collective bargaining within the meaning of Sec- tion 9(b) of the Act: All auto mechanics, body repairmen, painters, their ap- prentices and helpers, and lubrication men, employed by the Employer at its place of business in Akron, Ohio, excluding all office clerical employees, salesmen, parts department employees, garage men, and all guards, professional employees and supervisors as defined in the Act. During the term of this contract and up to September 4, 1970, East Town occupied the same physical plant as Respondent now occupies,' and operated therein the same type of auto sales and service agency as Respondent now operates in it. On August 13, 1970, East Town formally terminated said con- tract by letter to the Union (which had become the successor to Local Lodge 762 by merger in April 1970). On the same date East Town sent a letter to Chrysler-Plymouth Division of Chrysler Motor Corporation (herein called Chrysler) ter- minating its franchise as an official Chrysler-Plymouth au- tomobile dealer, effective August 22. In January 1968, Chrysler, through its Marketing Invest- ments Division, had created East Town pursuant to a joint venture under agreement with one John Wilson under which Wilson owned a one-fourth interest and Chrysler a three- fourth interest in East Town. Wilson actively operated the corporation as a franchised Chrysler-Plymouth dealer, but under supervision of a board of directors consisting of Wilson and two Chrysler officers, with the identity of the latter offi- cials changing from time to time. East Town leased the prem- ises aforesaid from another subsidiary of Chrysler. Wilson gave up the operation about March 1970, resigning as presi- dent and director of East Town. His place was taken by one Lamar Horne, a Chrysler official in the Marketing Invest- ment Division of Chrysler, but Wilson remained as a salaried general manager until about July. When he left, another Chrysler official, John Logan, took over as manager. About the time East Town gave up its dealer franchise, Home took over the management of the operations for purposes of liqui- dation and disposal of the assets. In the process, he returned all factory parts in stock to Chrysler, as well as new cars on hand, and tried to sell the remaining assets. In this period, he continued to have completed service and repair work already contracted. In the liquidation period prior to termination of the union contract, East Town continued to abide by its terms. On occasion, Horne and Service Manager Richard Wolfe dis- cussed employee grievances and other personnel problems with Samuel Ramnytz,. business agent of the Union, and Un- ion Steward Andy Parks, and in course of such discussions the Union learned that Horne was acting as manager for Chrysler only for purposes of closing out the business, but there was no discussion among them about the progress of the liquidation, probable buyers, or the gffect of the liquidation on employees. ' The East Market Street facility included the new car sales and show- room with adjacent offices, a used car lot, service garage in rear of the building, and a paint and body repair shop on the second floor, reached by a ramp from the back street known as North Adolph Street 117 B. The Advent of Respondent In April or May 1970 members of Spitzer Management, Inc. (herein called Management), first looked over the East Town plant and operation with a view to taking over the business.' They had some talks with Wilson and Chrysler officials up to May, when discussions lapsed for disagreement on value of the parts inventory, which prevented final agree- ment on sale price. Discussions were resumed in July and continued through August. However, Management and Horne did not reach complete agreement on price until about 5 p.m. on September 4, at which time Respondent' paid East Town about $290,000 for inventory of automobiles, parts, and work in process on hand; it also agreed to assume and pay the East Town payroll as of September 1, that date being chosen to make the transaction easier from an accounting standpoint. During the final negotiations between August 31 and Sep- tember 4, Alan Spitzer and Norman Hamilton, an officer of Spitzer Management, Inc., were on the premises daily, check- ing assets and working out final details of the transfer. How- ever, Respondent did not assume legal control of the premises and the operation until after midnight on September 5. Re- spondent actually began operations in the plant on the morn- ing of September 7. In the period between August 22, the date when East Town terminated its dealer franchise, and midnight of September 4-5 members of management were conducting an inventory of all assets preparatory to the purchase, but no cars were sold by East Town, although a few were serviced by its employees and delivered to customers under prior sales, and in this period East Town employees were still performing mechani- cal work in the repair shop. At this time, Chrysler as owner of East Town and landlord of the premises was operating per se under its own dealer's license. After the sale of assets by a Chrysler subsidiary, Chrysler Development Corporation, to Respondent on September 4, another Chrysler subsidiary, Chrysler Realty Corporation, leased the premises to Re- spondent with first rent payable October 1, 1970 After it began operations, Respondent subleased the upstairs body and paint shop, with some parking spaces and spray booths, to one John Irec, an independent operator, who has since run that operation under supervision of himself and his wife, with four employees, none of whom are connected with Respond- ent or do any work in its service department or on agency premises. In arranging for auto body repair and paint work, Respondent usually secures bids from Irec, but does not sub- contract such work continually to him, nor does Respondent have any financial or other interest in or control over his business In operating the dealership, Respondent has been conduct- ing the same business (with the exception of the auto body repair and paint shop) as East Town, using 10 of the 11 men in the East Town work force. It has also hired and still employs three former East Town management personnel: former service manager Richard Wolfe has been continued in that position, one Philip German has been continued as assis- tant service manager, and Gerald Guy has been continued as Management is an Ohio corporation composed of members of the Spitzer family which engages in the formation and financing of automobile dealerships which obtain and operate under franchises from one of the Big Three (Chrysler, Ford, and General Motors) Respondent was incorporated by the Spitzer family on September 1, 1970, with Alan Spitzer, his father John Spitzer, and his uncle Del Spitzer each owning one-third of the capital stock Alan Spitzer is its president Respondent received its license to do business as an automobile dealer from the State of Ohio on or about August 31, 1970 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sales manager. None of the three filed new job applications before beginning work for Respondent. C. Dealings of the Spitzers and Respondent with the Union When Del Spitzer visited the agency early in August 1970, in connection with family plans for buying the business, he told mechanic John Hall that the Spitzers planned to buy the agency and would need good mechanics. When Hall sug- gested that he keep all the East Town mechanics, Spitzer replied that he had checked on them, found they were good men, and "I want every man to stay on the job, and we will carry on as usual." On the evening of September 4, 1970, shortly after Re- spondent had consummated the purchase of assets from East Town, John and Del Spitzer assembled and talked to the employees at the agency. Del Spitzer explained the family operations in developing dealer franchises and said the Spitz- ers had taken over the Chrysler-Plymouth franchise here. He announced that the employees would receive extra pay in their paychecks coming out that day. He also described the Spitzer hospital benefit plan, saying it was better than the plan which the men already had from the Union; he said Respondent would pay one-half of the hospital insurance premiums, as well as one-half of their uniform expenses, and would give them six paid holidays a year and a week of paid vacation after a year of service. At close of his remarks, Spitzer asked for questions, but there were none from the men, nor was there any discussion of the Union or its current benefits. Steward Andy Parks reported the Spitzer remarks at once to Ramnytz, who said he would contact Respondent about a contract. Ramnytz visited the agency on September 9 and told Alan Spitzer, Hamilton, and Wolfe that the Union represented the employees and wanted a contract. When Spitzer and Wolfe asked what that "involved," Ramnytz said Respondent should sign "whatever came out of the area contract then being negotiated,"' and if it did so, its employees would con- tinue to work during the strike against the Akron dealers. He explained that the Union was demanding from that group $4.50, $4.75, and $5 an hour in successive years of a 3-year contract. Wolfe commented that he "did not see any sweat there" but also added that Respondent was "not buying a blind pig in a poke" or letting other people negotiate for it. Spitzer said Respondent had just taken over the business, was in process of taking parts inventory and getting the parts department straightened out, and things were in confusion, and asked the Union to give Respondent 2 weeks, after which they would "talk." In the discussion, Spitzer said that, after his talk with the men on September 4, he doubted very much that the East Town employees wanted to "continue with the Union," and suggested that the Union should have a Board election, and if the employees indicated they wanted the Un- ion, he would be glad to negotiate a contract with it. Ramnytz replied "OK, if that is what you want." He also offered to show Spitzer new union authorization cards which he had signed by the employees. The Union never produced the cards. Ramnytz reported this meeting to the employees, who agreed to give Respondent the 2 weeks. On or about Septem- ber 21, Ramnytz came to the agency to ask Alan Spitzer "what your position was." Spitzer and Wolfe replied that Respondent would not recognize the Union. Ramnytz re- ported this to the mechanics, who voted to strike, and on ' The Union was in process of negotiating a new contract with the Akron Automobile Dealers Bargaining Group, but had struck all the dealers on September 1 for lack of agreement on a contract September 22 at least 10 out of about 12 or 13 employees went on strike, which was still in process at time of the hearing, with the sanction of the Union. Sometime in January 1971, Ramnytz had a talk with Del Spitzer at the agency, in which he suggested that Respondent recognize the Union, because it had had a contract covering the employees there for several years, and the employees still wanted the Union to represent them. Spitzer replied that he did not think the employees needed a union. Ramnytz sug- gested that Respondent "should not fight it." Spitzer replied "We are not fighters, we are lovers." Ramnytz said "Let's be lovers and make a contract." Spitzer then referred to exten- sive damage to showroom windows during the strike and repeated he did not think the employees needed a union.' On March 26, 1971, 10 striking employees formally offered by letter to return unconditionally to work for Respondent. Respondent sent each a letter requesting them to return, but none did. Ramnytz took eight of them to the agency one night for purposes of arranging their return, but Alan Spitzer sug- gested he would interview them the next day when the service manager was present. When they came back the next morn- ing, Spitzer asked each to sign new employment applications. Ramnytz asked why this was necessary. Spitzer gave an equivocal answer indicating this was necessary, that as they were new employees, he "could not hire them." Later, the Union learned from counsel for Respondent that the new applications were asked for merely to show that the men were available for work. In the interview, some men made arrange- ments with Spitzer on a date for return to work, but they remained on strike. One of them, Andy Parks, later agreed to return on April 19 after a personal talk with Alan Spitzer, but remained on strike after receiving an anonymous tele- phone call saying he would be "taken care of if he returned; he later agreed to return on May 17, but then broke his leg and has been unable to go back up to time of the trial. D. Contentions of the Parties and Final Findings and Conclusions Thereon 1. The successorship issue The record shows, and Respondent admits, that it has continued the same business of East Town at the same loca- tion with substantially the same work force and supervisory personnel, and the remarks of Del Spitzer to one mechanic in August make it clear that the Spitzer interests had this continuity in mind before Respondent was created and began operations, and even before the East Town contract with the Union expired. In addition, Respondent has leased the agency premises from the same Chrysler division as East Town, and has continued all aspects of the operation, with the exception of the paint shop operation, which is subleased to an independent operator. Hence, it is clear that the employing industry has been continued by Respondent in essentially the same form and scope as it was before the transfer of owner- ship, so that it would appear prima facie that Respondent legally succeeds to any bargaining obligation of its predeces- sor created by the Act. Bachrodt Chevrolet Co., 186 NLRB No. 151; N.L.R.B. v. Colten, 105 F.2d 179, 183 (C.A. 6); Interstate 65 Corporation, 186 NLRB No. 41; The William J. ' Sometime late in 1970, Respondent filed suit in the Summit County, Ohio Court of Common Pleas, against the Union, its officers, and some employees, seeking an injunction against coercion of employees and physi- cal violence On December 29, 1970, the Court issued a temporary restrain- ing order aginst the defendants, limiting the number of pickets at the agency premises, restraining them from interfering by forcible means or threat of force with ingress to and egress from the premises, and from causing physi- cal damage to the real or personal property of Respondent, its employees, or customers The injunction was still in effect at time of the trial herein SPITZER AKRON, INC. Burns International Detective Agency, Inc., 182 NLRB No. 50; Hackney Iron & Steel Co., 182 NLRB No. 53. Respondent argues that these principles and the supporting authorities do not control here because this is not the usual type of successorship as considered in those cases, in that (1) Respondent did not buy the assets and business from East Town which had dealt with the Union, but from a division of Chrysler after it took over the assets and operation on default of East Town, and (2) before Respondent was created and took over the business, the contract with the Union had expired, and no negotiations for a new contract were pending with East Town. The record shows that Chrysler stepped in and kept the operation going partially to protect its own investment after Wilson gave it up, but it is also clear that during the reduced operation it maintained the same labor force and adhered to the union contract until its expiration date, so I must conclude that the continuity of the employing enterprise was not substantially disturbed or its nature changed during its interim operation by Chrysler, which was obviously trying to operate it as a viable and thus saleable business, until such time as the Spitzer interests or some other entrepreneur took it over. Hence, Respondent took over a going business, not a defunct or liquidated one. It follows that its bargaining obligation as a successor employer under the above cases continued. The fact that the Union's contract had expired, and no negotiations were pending, when Respondent took over the business did not relieve Respondent of its obligation. The Board and courts have held that the bargaining obligation of an employer under a prior collective-bargaining agreement continues even after that agreement has expired and during the period between such agreements,' and that where the transfer of assets from one employer to another leaves intact the identity of the employing enterprise, the duty of the former to recognize and bargain with an incumbent union, even in the period between contracts, devolves on the latter as the successor employer. Overnite Transportation Co., 157 NLRB 1185, enforced 375 F.2d 765, (C.A. 4), cert. denied 398 U.S. 838; The William J. Burns International Detective Agency, Inc., supra. The same authorities hold that the obligation of the succes- sor employer to bargain with the incumbent union includes the negative injunction to refrain from unilateral changes of wages and other benefits established by the expired contract. Hence, I must hold that Respondent's admitted unilateral increase of wages and other benefits of unit employees the same day that it consummated the purchase of the business was a violation of its collective-bargaining duty under Section 8(a) (5) of the Act. Respondent tries to distinguish the William J. Burns case because on review of the Board's decision therein (182 NLRB No. 50), the U. S. Court of Appeals, Second Circuit, on April 26, 1971 (441 F.2d 911) refused to enforce the Board's bar- gaining order against the successor employer insofar as it ordered that employer to honor a collective-bargaining con- tract negotiated by the predecessor employer with a union only shortly before the transfer of ownership, on the theory that such order compelled the successor to accept a contract not negotiated by it, in violation of Section 8(d) of the Act. However, the court still agreed with the basic principle reiter- ated by the Board and the courts as found above, that requires the employer succeeding to control of a continuing business enterprise to recognize and bargain with the union represent- ing the unit employees therein (441 F.2d at p.913). Hence, the ' Industrial Union of Marine & Shipbuilding Workers v N.L R B., 320 F 2d 615, 620 (C A 3), cert denied 375 U S 984, The William J Burns International Detective Agency, Inc., supra 119 circuit court did not limit, but rather recognized the basic principle. 2. The refusal to bargain I have already found on the basis of the authorities cited that Respondent technically violated Section 8(a), (5) of the Act on September 4, by its unilateral changes of existing wages and working conditions of unit employees, and this alone would suffice to support an order to bargain in the usual form. However, the pleadings raise the issue whether Re- spondent has continued in any other respect to recognize or bargain with the Union, and both sides have argued the point whether Respondent after September 4 had a bona fide doubt of the Union's majority status. At the outset, it is significant that after union agent Ramnytz on September 9 first re- quested Respondent to make a contract,'° his only suggestion about bargaining procedure was that Respondent accept whatever contract terms came out of the pending negotiations with the Akron Dealers Bargaining Group. While Respond- ent did not at first glance see any great problem about the Union's wage demands to the Group, it did refuse to accept blindly any overall Group contract without negotiating con- tract terms for itself, and then asked for a short period to get its business straightened out before entering on serious negotiations. The Union agreed to this, and was also receptive to Respondent's offer that it would negotiate a contract if and when the employees chose the Union in a Board conducted election. I see no conduct of Respondent in this discussion which would justify a bargaining order, because the Union was trying to force Respondent to accept an outside contract as and if worked out by others, without negotiation, in order to avoid a strike of its employees. On this point, Respondent relies on the statement of the Second Circuit Court of Ap- peals in the William J. Burns case that "Neither the applica- ble case law nor the national labor policy justifies the Board in imposing a collective agreement upon an unwilling party who had no part in the negotiation of the agreement" (441 F.2d at 915). I agree with this view and hold that Respondent did not on September 9 engage in any violation of the Act, particularly since it did not at that time express any doubt about the Union's majority status and was willing to negoti- ate a contract with it after an election or a short moratorium while it got its new business operating." 10 In his testimony Ramnytz tried to advance the date of the Union's demand to an unidentified date in August, at which time he says he told Alan Spitzer and Wolfe that the Union had a contract and wanted to renew it because of the Group contract which was in negotiation at the time. I do not credit this story for various reasons (1) while Ramnytz recalls the talk of September 9 with Spitzer, he cannot recall the earlier date, which would be essential to support General Counsel's claim that Respondent (though not yet in existence) had been operating the agency since August 19 as a successor employer; (2) the alleged request for renewal of the current con- tract was not a proper request for bargaining because it was apparently tied to the pending negotiations with the Akron Dealers' Group (as appears in his remarks on September 9), and (3) the facts clearly showing the Spitzer interests did not close the deal with East Town and take over the business until late on September 4 gives the lie to Ramnytz' statement that the Spitzers indicated as early as August 19 that they were "already carrying on the business " Hence, I find no credible proof that the Union made any demand for bargaining , much less a proper one , on August 19 or earlier. " I do not accept Respondent's argument that the Union never made a clear and unequivocal demand for bargaining on September 9, for although Spitzer and Ramnytz gave different versions of what Ramnytz said on this subject, the gist of the whole conversation as found above from testimony of both makes it clear that Ramnytz was then seeking recognition of the Union and consummation of a contract, and Respondent's reply, asking "what was involved," which elicited Ramnytz' statement of wage demands and request for signature of the Group contract when consummated, leaves no doubt that it viewed the first remarks as a request for negotiations A (Cont ) 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, when Ramnytz on September 21 came back to request bargaining in effect, Respondent for the first time flatly refused to recognize the Union, which precipitated the strike the next day. Respondent gave no reason for its refusal, other than to state the employees did not need a union and to refer to instances of strike violence and damage to its property. Respondent tries to justify this refusal on the ground of a good-faith doubt of majority status, which it claims arose from (1) the failure of the unit employees to raise any questions on September 4 about the new wages and work- ing conditions announced unilaterally that evening, (2) the Union's certification as bargaining agent was "several years old," so that the 1-year presumption of majority status after such certification does not apply; and (3) the Union's latest contract had just expired. In my view, none of these factors support the claim of bona fide doubt. First, mere silence of unit employees about the Union or their adherence to it when hearing wage raises and other increased benefits announced for the first time is an equivocal circumstance which falls far short of any reasonable indica- tion that the employees no longer desired union representa- tion; even if that inference could be justified on any theory, any disaffection of the employees at that point could well be attributed to the coercive effects of a sudden, unilateral grant of increased wages and benefits which violated both Section 8(a) (5) and (1) of the Act." Having used such coercion, the employer should not be permitted to profit by his own unfair labor practices which might tend to undermine the Union's past majority status." Second, the record shows that Local 762 was certified by the Board in 1961 as bargaining agent for unit employees working then for Arnett, Inc. After East Town succeeded Arnett in running the business, and the Union in 1970 took over the duties of Local 762 by merger, including the 1964 contract, it is clear that the Union continued to represent unit employees as statutory bargaining representative at least up to August 31, 1970, without objection from Arnett, East Town, or even the Spitzer family when they began to work out a purchase of the business." Hence, all the circumstances support an inference of continuance of the Union's majority status, and Respondent offers no cogent proof of unusual circumstances to rebut any presumption of continuance of that status in Local 762 and later the Union, after May 12, 1962.15 request for bargaining need not follow any specific or precise wording or formula, but will be sufficient so long as there is a clear communication of meaning, and the employer understands that a bargaining demand is being made N.L.R.B. v Barney's Supercenter, Inc., 296 F 2d 91, 93 (C A 3), Beverages, Inc., 182 NLRB No. 136 " See cases cited in fn. 9 above " Harold W. Hinson, d/b/a Hen House Market No. 3, 175 NLRB No 100 " The normal presumption of majority status of a union continues during the operation of a contract having a union shop and checkoff clause which requires all unit employees to be members of the union Having thus chosen a bargaining agent, there is no reason to believe that the employees would change their attitudes merely because the identity of their employer had changed. N.LR.B v AlbertArmato, 199 F 2d 800, 803 (CA 7). 15 It is well settled that, absent unusual circumstances , there is an irrebut- table presumption that the majority status of a certified union continues for 1 year after the date of its certification After the first year the certificate still continues that presumption, but it is normally rebuttable by an affirmative showing that the union no longer commands a majority Moreover, where the certificate is a year or more old an employer may withhold further bargaining without violating the Act, and insist that the union reestablish its statutory representative status if, but only if, he in good faith has a reasona- ble doubt of the union's continuing majority status The employer must, however, adduce cogent proof of objective facts to furnish a reasonable basis Finally, even if a claim of good-faith doubt as late as Sep- tember 21 were supported by record facts or some theory other than urged above, it would be substantially weakened by two sets of circumstances: (1) Uncontradicted testimony of steward Parks shows that about September 13 or 14 Sales Manager Guy announced to Parks that he was going to discharge two unit employees because they could not do their work. He asked Parks for his comment, and Parks replied he had a right to discharge any- one he wanted to at any time, but that Parks would have to report it to the business agent of the Union and "you can take it from there." Neither employee was discharged. While Guy as sales manager would appear to have authority only over salesmen, who are excluded from the appropriate unit, he did not testify, hence I must infer that his remarks to Parks indicated to the latter that he had some discharge authority over unit employees, and that he was advising Parks as union steward beforehand about discipline contemplated against unit employees. I also find from uncontradicted testimony of Parks that: About a week before the strike started Service Manager Wolfe called all mechanics and body repairmen together and asked them "what are you trying to do, sabotage me?", complaining that shop employees were taking off from work without reporting in as absent, which made it hard for him to get work out on schedule as promised to customers. He commented that if that was the way the Union conducted operations, he wanted no part of it and was glad he had never worked in a union shop before. The men told him that if they did not get a contract they would "hit the bricks." He replied that if a strike occurred, "I could care less."" I find from these facts that Respondent after September 9 continued to recognize the Union as bargaining agent of unit employees and had reason to believe most of them would continue to adhere to it by striking if Respondent did not reach agree- ment with it. (2) All but one or two of the unit employees began a strike on September 22 sanctioned by the Union, and such con- certed action after Respondent flatly denied recognition to the Union was clear notice to Respondent that a majority of unit employees still adhered to the Union." It follows, and I find, that Respondent did not have a good-faith doubt of the Union's majority status on September 14, 1970, and further refused in good-faith on and after that date to bargain with the Union in violation of Section 8(a) (5) and (1) of the Act." Since the unit employees struck on September 21 because of Respondent's illegal refusal to bargain with the Union, I must also find that the strike of that date was an unfair labor practice strike. Respondent argues that the strike should not be considered "protected" under the Act because of the inci- dence of extensive physical damage to its property during the for such doubt, and cannot rely on a mere assertion of it or proof only of his subjective frame of mind Laystrom Manufacturing Co., 151 NLRB 1482, 1484, enforcement denied on the facts 359 F 2d 799 (C A 7); Coca- Cola Bottling Works, Inc., 186 NLRB No. 142 1' I make no finding that Wolfe's remarks to the group indicated signifi- cant union animus on the part of Respondent, because the occasion and tenor of his remarks clearly show he was irritated , if not actually angered, by unusual absenteeism among the unit employees , Parks admitted Wolfe had a legitimate complaint about employees going absent without leave or notice " NL R.B v Harass-Woodson Co, Inc, 179 F 2d 720, 723 (C A 4), NLRB v I Taitel and Son, 261 F 2d 1, 4 (C A 7), Canton Sign Co., 174 NLRB No 133 ; Pacific Abrasive Supply Co, 182 NLRB No 48 " The above circumstances, in my view , far outweigh the significance of the facts that Ramnytz on the 9th had been in apparent agreement with the idea of a new election, and had offered to show new authorization cards which he had procured from them some days earlier, but never did produce them SPITZER AKRON, INC. course of the strike. The record shows that a local state court issued a preliminary injunction against strike violence against the Union, its agents and some strikers, but the evidence which supported that decision, and which might service to bring the violence and property damage home to the Union and its members on strike, was not offered by Respondent, and the union agent and its members who testified in this case denied any agency for or connection with the violence and damage. However, Ramnytz admitted the existence of the property damage and at least one altercation between a striker and a company supervisor. Respondent argues from this that the Board may infer that the "Union or its members had something to do with the damage, as it all occurred during the duration of the strike." However, since General Counsel is claiming on the basis of well-settled law19 that the unfair labor practice strikers are entitled to backpay from the time of their unconditional offer to return to work until a proper offer of reinstatement, it requires cogent proof in this proceeding of their connection with or liability for the dam- age done to deny them that substantial right of backpay. I find the record devoid of such proof.20 III THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II, 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. CONCLUSIONS OF LAW 1. Respondent and East Town are employers engaged in commerce, and the Union is a labor organization, within the meaning of the Act. 2. All auto mechanics, body repairmen, painters, their ap- prentices and helpers, and lubrication men employed by Re- spondent at its place of business in Akron, Ohio, excluding all office clerical employees, salesmen, parts department em- ployees, garage men, and all guards, professional employees and supervisors as defined in the Act, constitute a unit appro- priate for purposes of collective bargaining within the mean- ing of Section 9(b) of the Act. 3. At all material times mentioned in this Decision the Union has been the exclusive representative of all employees in the above unit for purposes of collective bargaining within the meaning of Section 9(a) of the Act. 4. By unilateral changes of wages and working conditions of employees in said unit on September 4, 1970, and by there- after failing and refusing, on request, to recognize, meet, and bargain with said Union as such bargaining agent with re- spect to rates of pay, wages, hours of employment, and other terms and conditions of employment of employees in said unit, Respondent has engaged in, and is engaging in, unfair labor practices affecting commerce within the meaning of Sections 8(a) (5) and (1) and 2(6) and (7) of the Act. 5. The strike of Respondent's employees on September 22, 1970, was caused by the unfair labor practices of Respondent found above and is an unfair labor practice strike within the meaning of the Act. " Phelps-Dodge Corp. v NLR B., 313 U S 177 3o Artcraft Mantle & Fireplace Co., 174 NLRB No 110 121 THE REMEDY Having found that Respondent has failed and refused to recognize and bargain with the Union as the statutory bar- gaining agent of its employees in violation of Section 8(a) (5) and (1) of the Act, I shall recommend the usual type of cease-and-desist and bargaining order, including certain affirmative action designed to effectuate the policies of the Act. While Respondent's unilateral change of wages and working conditions on September 4 included a change in the employees' share of the cost of health insurance, it is not clear from the record that the increased cost covered the same benefits as under the Union's health insurance plan or in- cluded added life insurance or other coverage. I will therefore recommend only that Respondent be ordered to cancel any changes of benefits or working conditions which may have resulted in financial or other detriment to employees and to reimburse any who may have suffered financial loss thereby. As Respondent's employees have been engaging in an un- fair labor practice strike, they are entitled to reinstatement upon their unconditional application for reinstatement, and to backpay from the date of such application to the date of an unconditional offer of reinstatement." Here, 10 strikers made a proper request for reinstatement on March 26, 1971, and on a later date not specified Respondent sent them letters requesting them to return to work, but none of them did; 8 came in at one time with Ramnytz to arrange a return date, but all remained on strike. Hence, the strikers need not be offered reinstatement, but they are entitled to backpay only from the date of Respondent's receipt of their offer of March 26, 1971, to the dates they received the letters offering rein- statement.22 While those dates are not clear in the record, they can be ascertained from company, employee, or union records. Backpay shall be computed in accordance with the formulas set forth in F W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Since there is a lack of cogent proof indicating that the Union or specific strikers engaged in or are clearly liable for miscon- duct and property damage occurring during the strike which would bar strikers from backpay, I cannot make any recom- mendation to bar any or all strikers from that relief. Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:23 ORDER Respondent, Spitzer Akron, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Making unilateral changes in wages, rates of pay, hours of employment, or other terms and conditions of employment of its employees in the appropriate unit described below, or failing or refusing in any other manner to recognize, meet, or bargain collectively with the above Union, upon request, as the exclusive bargaining representative of its employees in said unit, which is described as follows: " Sew Magic, Inc., 184 NLRB No 115, Mastro Plastics Corp. v NL R B., 350 U S 270, 278, Cast Optics Corporation, 184 NLRB No 1 " Southwestern Pipe, Inc, 179 NLRB No 52, O'Daniel Oldsmobile, Inc, 179 NLRB No 55, Bender Ship Repair Co, et als., 188 NLRB No 86 " In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All auto mechanics, body repairmen, painters, their ap- prentices and helpers, and lubrication men employed by Respondent at its place of business in Akron, Ohio, ex- cluding all office clerical employees, salesmen, parts de- partment employees , garage men, and all guards, profes- sional employees and supervisors as defined in the Act. (b) In any like or related manner interfering with, restrain- ing, or coercing its employees in the exercise of any of the rights guaranteed to them by Section 7 of the Act, 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 the proviso to Section 8(a) (3) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, recognize, meet, and bargain collectively with the above-named Union as the exclusive bargaining rep- resentative of all its employees in the appropriate unit found above, with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Upon request, cancel any changes of benefits or work- ing conditions of its employees in said unit made on Septem- ber 4, 1970, or later, which may have resulted in financial or other detriment to said employees, and reimburse them for any financial losses they may have suffered thereby. (c) Make whole all of its employees who went on strike on September 22, 1970, for any loss of earnings they may have suffered from the time of their unconditional offer to return to work to the date when Respondent offered them reinstate- ment to their former or substantially equivalent employment. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records relevant or necessary to facilitate a determination of the amounts due to employees under the terms of this Order. (e) Post at its place of business in Akron, Ohio, copies of the notice attached hereto as "Appendix."24 Copies of said notice, on forms to be provided by the Regional Director for Region 8, after being duly signed by Respondent's representa- tive, shall be posted by it immediately on receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify said Regional Director, in writing, within 20 days from date of receipt of this Decision, what steps Re- spondent has taken to comply herewith." " In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN OR- DER OF THE NATIONAL LABOR RELATIONS BOARD " 25 In the event that this recommended Order is adopted by the Board after exceptions have been filed, notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order, what steps Respond- ent has taken to comply herewith