Stewart Chevrolet, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Stewart Chevrolet, Inc. and Local Lodge 698, Inter- national Association of Machinists and Aero- space Workers, AFL-CIO. Case 7-CA-18408 June 22, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS FANNING AND ZIMMERMAN On the basis of a charge filed by Local Lodge 698, International Association of Machinists and Aerospace Workers, AFL-CIO, hereinafter re- ferred to as the Union, on October 21, 1980, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 7, issued a complaint against Stewart Chevrolet, Inc., hereinafter referred to as Respondent, on De- cember 19, 1980. The complaint alleges that Re- spondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union since on or about October 16, 1980. Re- spondent filed an answer to the complaint on De- cember 29, 1980, in which it admitted certain of the allegations, but denied the commission of any unfair labor practices. A hearing was held before Administrative Law Judge Lowell Goerlich on October 7, 1981, at which representatives of the General Counsel, Re- spondent, and the Charging Party were present. No witnesses testified; several exhibits were intro- duced into evidence. At the close of the hearing, the parties entered into a stipulation to transfer this proceeding to the Board, agreeing that certain doc- uments would constitute the entire record herein,' waiving all immediate proceedings before an ad- ministrative law judge, and agreeing to submit this case directly to the Board for it to make findings of fact and conclusions of law and issue its Decision and Order. The parties at the close of the hearing also agreed that the time for filing briefs to the Board would be November 9, 1981. Administrative Law Judge Goerlich by written order of Novem- ber 2, 1981, transferred the case to the Board for Decision and Order, and ordered the original of the record to be forwarded to the Board. On November 3, 1981, the parties, by telegram from counsel for the General Counsel, informed the Board that all parties requested an extension of time to file briefs with the Board until November 23, 1981, due to errors in the transcript. By letter from counsel for the General Counsel dated No- vember 6, 1981, the parties submitted to the Board The parties agreed that the charge, the complaint, the answer to the complaint, the transcript (as corrected by the Stipulation To Correct Transcript), and the exhibits received into evidence at the hearing consti- tute the entire record in this case. a Stipulation To Correct Transcript. This stipula- tion was received by the Board on November 10, 1981. The Executive Secretary of the Board, by telegram of November 19, 1981, informed the par- ties that the date for receipt of briefs to the Board was extended to November 23, 1981, and approved the Stipulation To Correct Transcript. Respondent filed a brief, received by the Board November 20, 1981. 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 entire record herein as stipulated to by the parties, as well as the brief, and has decided to accept the stipulation, as corrected by the Stipulation To Correct Tran- script, and makes the following findings of fact and conclusions of law: I. THE BUSINESS OF THE EMPLOYER Stewart Chevrolet, Inc., is a Michigan corpora- tion engaged in the retail and wholesale sales and service of new and used cars and trucks and relat- ed products. Respondent's only office and place of business is its facility in Woodhaven, Michigan. Based on a projection of its operations since on or about October 16, 1980, at which time Respondent commenced its operations, Respondent will annual- ly derive gross revenues from its business oper- ations in excess of $500,000. The parties stipulated, and we find, that Respondent is, and at all times material herein has been, an employer engaged in commerce or an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The parties stipulated, and we find, that the Union is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. II1. THE UNFAIR LABOR PRACTICE A. Facts Stewart Chevrolet, Inc., operates a new- and used-car General Motors dealership at 23755 Allen Road, Woodhaven, Michigan. Murphy Chevrolet, Inc., operated the dealership until mid-October 1980. In August 1978, Murphy Chevrolet signed a collective-bargaining agreement-to expire June 21, 1981-with the Union. The bargaining unit cov- ered was comprised of all mechanics, partsmen, parts truck drivers, porters, collision department employees, and lube men, excluding car and truck 262 NLRB No. 33 362 STEWART CHEVROLET, INC. salesmen, service salesmen, office clerical employ- ees, professional employees, guards and supervi- sors. On September 2, 1980,2 Murphy Chevrolet, Inc., signed an agreement to sell the operating assets of its dealership to Gordon Stewart and Sherwood Oklejas. Stewart and Oklejas subsequently formed a corporation and named it Stewart Chevrolet, Inc. The sale agreement was made subject to approval by General Motors. By letter dated September 2, Fred Murphy-president of Murphy Chevrolet- informed the president of the Union of the pro- posed sale, stating that his present intention was to cease operation on or about October 4. Murphy Chevrolet, the letter continued, was available to discuss any questions the Union had and to discuss the effect of the closing on bargaining unit mem- bers. The Union sent a letter, dated September 23, to counsel for Stewart and Oklejas stating that the Union intended to secure from the new owners the same contract terms as the existing collective-bar- gaining agreement. By letter dated September 25, counsel for Stewart and Oklejas acknowledged re- ceipt of the September 23 letter and stated that his clients would be interviewing employees for posi- tions with their new Chevrolet dealership.3 Murphy Chevrolet ceased operations on approxi- mately October 10. The service, body shop, and parts employees on October 10 filed a grievance with Murphy Chevrolet demanding that the new owners of the dealership recognize the Union and bargain with it for a new collective agreement. Murphy Chevrolet received the grievance that same day. On approximately October 13, Stewart Chevro- let began accepting applications and interviewing for mechanics, body shop workers, and other em- ployment positions at the new dealership. A total of 284 persons, including all but I former bargain- ing unit employee of Murphy Chevrolet, applied for employment at Stewart Chevrolet. Following General Motors' approval of the proposed sale, the transfer of assets from Murphy Chevrolet to Stew- art Chevrolet occurred, on approximately October 15. Stewart Chevrolet commenced operation of the dealership on October 16. On October 16, Stewart Chevrolet had hired nine bargaining unit employees. 4 Of those nine, s Hereinafter all dates refer to 1980. unless otherwise specified. 3 Both the transcript and the court reporter's stamp on the document indicate that the Union's September 23 letter to counsel for Stewart Chevrolet (G.C. Exh. 3) was offered and received into evidence. The transcript does not indicate that counsel for Stewart Chevrolet's Septem- ber 25 reply letter (G.C. Exh. 4) was offered or received into evidence, although the document itself is marked as "Received." ' Those nine were: R. Martin, Reece, Jondall, Vlodyka, Hamel, Blum, Smith, Godell, and Woolcott. WoolcoIt was hired as a porter in the new- car department of Stewart Chevrolet. four had been employees of Murphy Chevrolet. 5 In the following days, Stewart Chevrolet hired more employees, some of whom had previously worked for Murphy Chevrolet and some of whom had not. Thus, by October 17, it had 10 bargaining unit employees, 5 of whom were former Murphy Chevrolet employees (old) and 5 of whom were not (new); by October 20, it had 13 employees, 6 old and 7 new; by October 22, it had 15 employees, 6 old and 9 new; by October 24, it had 16 employ- ees, 7 old and 9 new; by October 28, it had 17 em- ployees, 7 old and 10 new; by November 4, it had 18 employees, 7 old and 11 new; by November 10 it had 19 employees, 7 old and 12 new; by Novem- ber 12, it had 20 employees, 7 old and 13 new; by November 20, it had 21 employees, 7 old and 14 new; by November 28, it had 22 employees, 7 old and 15 new; and by December 4, it had 23 bargain- ing unit employees, 7 old and 16 new. Just prior to ceasing operations in October, Murphy Chevrolet had a total employment of 26 persons (bargaining unit employees, salesmen, office clericals, and man- agement); 14 of that total number were bargaining unit employees. When it commenced operations on October 16, Stewart Chevrolet had a total employ- ment of 26 persons (bargaining unit employees, salesmen, office clericals, and management), 9 of whom were in the bargaining unit. B. Contentions of the Parties Counsel for the General Counsel contends that Respondent is a "successor employer" to Murphy Chevrolet, that as such it succeeded to Murphy Chevrolet's bargaining obligation, and that, by fail- ing and refusing to bargain since on or about Octo- ber 16, Respondent violated Section 8(a)(5) and (1) of the Act. Respondent contends that at no time did former employees of Murphy Chevrolet com- prise a majority of Stewart Chevrolet employees, and therefore it is not a "successor employer" and did not violate Section 8(a)(5) and (1) of the Act. 5 Those four were: R. Martin, Reece. Jondall, and Vloydka. Woolcott worked for Murphy Chevrolet for somewhere between 30 and 45 days prior to Murphy's termination of business. The stipulated record fails to demonstrate that Woolcott's work for Murphy was in the capacity of an employee of Murphy Chevrolet. Thus, Woolcott's name does not appear on Murphy Chevrolet's list of employees as of September 24 (16 days prior to Murphy's cessation of operations), on Murphy Chevrolet's pay- roll for the period of 30 to 45 days prior to Murphy Chevrolet's termina- tion of business, or on Murphy Chevrolet's list of former Murphy Chev- rolet employees who applied for work at Stewart Chevrolet. Stewart Chevrolet's list of its employees identifies Woolcott's former employer as Dann and Armstrong, not Murphy Chevrolet. Murphy Chevrolet's list entitled "Entire Murphy Chevrolet, Inc. Staff Thru 10/10/80" does not include Woolcott's name. Both parties stipulated to the authenticity of each of these lists. Under these circustances, we find that Woolcott was not an employee who was a member of the bargaining unit when Murphy Chevrolet operated the dealership 363 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Discussion and Conclusion It is not disputed that since its commencement of operations as a General Motors dealership on Octo- ber 16, 1980, Stewart Chevrolet has engaged in substantially the same business operations, at the same location, selling substantially the same prod- uct and services to substantially the same custom- ers as Murphy Chevrolet had engaged in prior to the sale. In such circumstances the new employer has, upon request, an obligation to bargain if a ma- jority of the unit employees hired were unit em- ployees of the predecessor employer. United Main- tenance & Manufacturing Co., Inc., 214 NLRB 529, 533 (1974). The Union here requested recognition and bargaining by its letter of September 23. Stew- art Chevrolet refused to recognize or bargain with the Union, and commenced operations on October 16. The key inquiry is thus what percentage of Stewart Chevrolet's employees on and after Octo- ber 16 were former employees of Murphy Chevro- let. 8 The stipulated record shows that on October e The Daneker Clock Company, Inc., 211 NLRB 719 (1974), enfd. 516 F.2d 315 (4th Cir. 1975); Southwestern Broadcasrers. Inc., 255 NLRB 330 (1981). 16 four of the nine bargaining unit employees hired by Stewart Chevrolet had been unit employees of Murphy Chevrolet. The record further demon- strates that at no time did former bargaining unit employees of Murphy Chevrolet constitute a ma- jority of the bargaining unit employees of Stewart Chevrolet. We therefore find that on no relevant date were a majority of the employes hired by Stewart Chevrolet former employees of Murphy Chevrolet, and Stewart Chevrolet is not a succes- sor employer. 7 Stewart Chevrolet thus had no obli- gation to recognize or bargain with the Union, and did not violate Section 8(aX5) or (1) of the Act by failing to do so. Accordingly, we shall dismiss the complaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. 7 Member Fanning concurs in the result here, but he does not believe that in every case there must be an absolute majority of the predecessor's employees before a duty to bargain can be found. See United Maintenance & Manufacturing Ca. Inc., 214 NLRB 529, 536, fn. 21 (1974), and cases cited therein. 364