Paramus Ford, Inc.

PARAMUS FORD 351 NLRB No. 53 1019 Paramus Ford, Inc. and Local 355, United Service Workers Union, IUJAT, AFL–CIO. Case 22– CA–27444 October 31, 2007 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER On January 31, 2007, Administrative Law Judge Ste- ven Davis issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions1 and to adopt the recommended Order as modified. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge, as modified below, and orders that the Respondent, Pa- ramus Ford, Inc., Paramus, New Jersey, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified below. Change the date in the last sentence in paragraph 2(b) to February 13, 2006. 1 In his Conclusion of Law 2, the judge inadvertently set the date when the Union became the exclusive collective-bargaining agent of the unit of service and parts employees employed by Paramus Ford as February 8, 2006. The judge repeated this date in his recommended Order. As the judge correctly found elsewhere in his decision, how- ever, the Respondent’s duty to bargain was triggered when (a) the Union made an effective demand and (b) a substantial and representa- tive complement was in place. Because the judge found that these two conditions were met on February 13, 2006, we modify the judge’s Conclusion of Law 2 to reflect that date and also amend his recom- mended Order accordingly. Member Liebman would affirm the judge’s violation finding. She agrees that a substantial and representative complement of employees was in place on February 13, the date as of which the judge found that normal business operations had commenced. In her dissent in Elmhurst Care Center, 345 NLRB 1176, 1180 (2005), Member Liebman ques- tioned the continued viability of the “normal operations” test in unfair labor practice cases involving allegedly premature recognition of a union, given the Board’s abandonment of the test in representation cases. She similarly questions application of the test in this successor- ship case, although she agrees that the test was satisfied. In finding that the Union made a demand for recognition and bar- gaining on February 2, 2006, Chairman Battista and Member Schaum- ber rely only on the letter which the Union sent to Ford Motor Com- pany. Marguerite R. Greenfield, Esq., for the General Counsel. Frank J. Peterpaul and Luanne M. Peterpaul, Esqs. (Peterpaul, Clark & Corcoran, PC), of Springfield, New Jersey, for the Respondent. Richard M. Greenspan, PC, of Elmsford, New York, for the Union. DECISION STATEMENT OF THE CASE STEVEN DAVIS, Administrative Law Judge. Based on a charge filed on June 13, 2006, by Local 355, United Service Workers Union, IUJAT, AFL–CIO (Union), a complaint was issued against Paramus Ford, Inc. (Respondent or Paramus Ford) on August 22, 2006.1 The complaint alleges essentially that the Respondent is the successor employer to Pistilli Ford, Inc. and has failed to recognize and bargain with the Union in a unit of service and parts department employees notwithstanding that the Union was the representative of Pistilli’s unit employ- ees and had a collective-bargaining agreement with Pistilli. The Respondent’s answer denied the material allegations of the complaint and on October 31 a hearing was held before me in Newark, New Jersey. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel and the Respondent, I make the follow- ing:2 FINDINGS OF FACT I. JURISDICTION The Respondent, a corporation having an office and place of business in Paramus, New Jersey, has been engaged in the sale and servicing of new and used motor vehicles and related parts and services. The complaint alleges that based on a projection of its opera- tions since on or about February 6, at which time the Respon- dent commenced its operations, the Respondent in conducting its business operations will annually derive gross revenues in excess of $500,000, and will annually purchase and receive at its Paramus facility, goods valued in excess of $50,000 directly from points outside New Jersey. The answer admits those alle- gations except that it denies that at the commencement of its operations the Respondent derived revenues in excess of $500,000 or purchased goods in excess of $50,000 directly from out of state sources. The financial statement for February, 2006 states that the Respondent’s gross sales that month were $1,582,962. It appears that a vehicle dealership such as the Respondent easily meets the jurisdictional requirements al- leged. I find that the Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6) and (7) of the Act. The Respondent admits and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. 1 All dates hereafter are in 2006 unless otherwise stated. 2 General Counsel filed a reply brief. The General Counsel also filed a motion to exclude Respondent’s Exhibit 4. The motion has been included in the record as GC Exhibit 14. I grant the motion essentially for the reasons set forth in the General Counsel’s motion. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1020 II. ALLEGED UNFAIR LABOR PRACTICES A. The Facts 1. The start of operations Pistilli Ford operated the facility at 365 Route 17, East Pa- ramus which comprised a Ford dealership including a show- room, service facility and body shop. On February 6, the Respondent made an “asset purchase” of Pistilli in which the Respondent acted as a partnership or joint venture between the Ford Motor Company (FMC) and Stephen Selman, a principal of All American Ford, a nearby dealership. The purchase agreement provided that the Respondent agreed to buy all of the new and unused vehicles of Pistilli for approximately $2 million, its goodwill valued at $3 million, and its machinery and shop equipment, furniture, signs and office equipment valued at $271,000. Pistilli agreed to transfer its service records, shop repair orders, and lists of employees. It was also agreed that the Respondent would not assume Pistilli’s collective-bargaining agreement with the Union, or the em- ployment of any of Pistilli’s employees. The Respondent solic- ited business from former Pistilli customers for whom it had e- mail addresses, and serviced vehicles brought in by Pistilli’s customers who had problems with the work done by Pistilli. James Sabino, the All American Ford service director stated that Pistilli’s customer records, including their names, ad- dresses and vehicles were transferred to the Respondent’s re- cords. Richard Selman, the brother of Stephen Selman and a principal in All American Ford, denied that Pistilli provided any customer lists. I credit Sabino who was intimately involved with the transfer and, as service director, would be aware that Pistilli’s customer records would be shifted to the Respondent. At the time of the purchase, FMC’s ownership interest in the Respondent was 80% and Stephen Selman’s was 20%, but, pursuant to the dealer development program, it is expected that ultimately Selman will buy out FMC’s interest.3 In addition to his interest in the Respondent, and his ownership of All Ameri- can Ford which is located about three miles away in Hacken- sack, New Jersey, Selman also owns Great American Chevro- let. The premises of the Respondent is owned by the Pistilli fam- ily, and is leased to the Respondent. Paramus Ford has the same phone number as Pistilli but not the same fax numbers. The facility contains a showroom, a service facility and an auto body shop. Pistilli formerly operated all three parts of the busi- ness at the facility. The Respondent continues to operate the showroom and the service shop, but it discontinued the body shop operated by Pistilli. Instead, the Respondent leased that space to an entity called Paramus Auto Body in which Stephen Selman has a 10% interest. Paramus Auto Body performs work for the Respondent and outside customers. Sabino stated that the Respondent’s suppliers are different than those used by Pistilli. The Respondent uses the same suppliers used at All American Ford. Such suppliers include garbage removal, jani- torial supplies, uniform supply, vending machines, and shop equipment rentals for oxygen used for cutting and welding. 3 This is a typical arrangement undertaken by FMC. Fremont Ford, 289 NLRB 1290, 1291 (1988). 2. The demand for bargaining For at least 13 years, the Union represented a unit of service department, parts department, and body shop employees at Pistilli Ford. The last collective-bargaining agreement ran from July, 2004 to June, 2007. The contractual unit included, in the service department, seven service technicians, one apprentice technician, one detail employee and one lot attendant. The parts department was comprised of the assistant parts manager, one counterperson, and one parts department driver. The body shop included two body shop employees. The Pistilli unit of service department, parts department and body shop employees totaled fifteen employees. The unit excluded guards and supervisors as defined in the Act. John Ames, the Union’s president, testified that upon hearing a rumor of a change in ownership of the Paramus facility, he spoke with the owner of Pistilli and then her attorney, and faxed the following letters on February 2 to FMC and All American Ford, respectively: To FMC Re: Bargaining Demand and Information Request Local 355, USWU, IUJAT (Union) has been the ex- clusive bargaining representative under the National Labor Relations Act for employees employed by Pistilli Ford. It is our understanding that Ford Motor Corp has taken over, or is in the process of taking over the dealership. As suc- cessor, the Union expects that your firm will employee [sic] all employees currently represented by the Union and maintain the current terms and conditions of employment. If we are incorrect in our assumptions, please contact the undersigned immediately. ---------------------------------------------------------------------------- To Mr. Steven Selman All American Ford Re: Pistilli Ford As you know we represent the service technicians at Pistilli Ford. We are advised that the employees have submitted employment applications to you anticipating that they are being hired when you take over the dealer- ship. I am further advised that employees have not been no- tified of their date to report to work. Please supply the undersigned, as the representative of these employees, detailed information as to the date they will be employed by your firm and if there are any em- ployees that are not being retained the basis therefore. Your prompt attention to this matter is required in the event the current dealership closes on Friday, February 3, 2006. Cc: Ford Motor Corp (via fax), District & National Offices. Ames received no reply to his letters. Ames gave uncontra- dicted testimony that on February 16, he visited the Respon- dent’s premises and asked someone who did not identify him- self, to speak to Stephen Selman. Selman was unavailable. Ames asked to speak to someone in charge and a man came PARAMUS FORD 1021 forward and greeted him. He also did not identify himself. Ames gave him his business card and requested recognition as the bargaining representative of the service department em- ployees. The unidentified man said that he would have to speak to Selman’s attorney and asked Ames to leave and not return. In this respect I do not credit Ames. “A trier of fact need not accept uncontradicted testimony as true if it contains improb- abilities or if there are reasonable grounds for concluding that it is false.” Operative Plasterers Local 394, 207 NLRB 147, 147 (1973). Ames’ testimony concerning his visit was devoid of any details concerning his alleged conversations. There was no testimony that he asked for the names, titles, or business cards of the men he spoke to, he did not describe their physical ap- pearance, and he sent no follow-up letter to the Respondent confirming his alleged conversations that day. The General Counsel’s reliance on LB & B Associates, Inc., 346 NLRB 1025, 1025 fn. 17 (2006), Doug Wilson Enterprises, 334 NLRB 394, 397 (2001), and GM Electrics, 323 NLRB 125, 125 (1997), is misplaced. In each of those cases, a named individual with specific duties was found to be an agent of the employer. Here, the only evidence that Ames spoke to an agent of the Respondent was that someone addressed him pursuant to his request to speak to “someone in charge.” There is no evidence that the Respondent placed anyone in a position who could be viewed as an agent. Without sufficient evidence as to who he spoke to, I cannot find that Ames had a reasonable belief that the Respondent authorized this unidentified man to act in its behalf. Paragraph 13 of the complaint alleges that between February 2 and February 16, the Union, both orally and in writing re- quested that the Respondent recognize and bargain collectively with it as the exclusive collective-bargaining representative of the unit employees. The Respondent’s answer “admits that it received a letter from the union as contained in paragraph 13, but denies that the union is entitled to recognition.” 3. The unit employees a. The service department All American Ford service director James Sabino was pre- sent daily at Paramus Ford during the first two weeks of its operation, assisting and getting the service department “up and running.” Richard Salazar began as the service manager at the Respondent, but left after about two or three weeks.4 Thereaf- ter, because of the absence of a service manager for the follow- ing two to three weeks, Sabino assigned All American Ford’s service manager Jason Hinderstein to supervise at Paramus Ford on a day-to-day basis until the new manager was hired. New manager Vincent Marchesani was recruited from Valley Ford. Sabino testified that on February 6, he interviewed all the service department employees who had previously been em- ployed by Pistilli. He was interested in people with Ford vehi- cle experience and he obtained their training records from 4 The record was not clear as to whether Salazar had been employed by Pistilli. Sabino testified that he hired Salazar who had Ford experi- ence, and that the service operation at Paramus Ford was “always under his responsibility.” FMC. Sabino offered positions to three service technicians: Luis Alvelo, who was certified as a diesel technician, Anthony Campagna and John Onofrey.5 All three had been employed by Pistilli. Sabino testified that he began the service operation with only three technicians because there was no work to support more than three and he did not know how much work the facil- ity would receive in the future. In addition, two lot attendants, Joanns Karaminas, who had previously worked at All American Ford, and Den Duncan were hired.6 These employees began work on Wednesday, February 8 in the pay period ending February 15. Sabino stated that during that first week ending Friday, February 10 they performed no work on vehicles. Rather, they were reorganizing the shop, cleaning, discarding items, dismantling broken equipment and painting. Four inoperable vehicle lifts were replaced and three additional lifts were added to the seven other operable lifts, giving the facility 14 lifts, all of which were in operation in mid March. In addition, new telephone, computer systems and heat- ing, ventilation and air conditioning systems were installed. On Monday, February 13, the service department employees began work on vehicles performing the same type of work they had previously done while employed by Pistilli. In fact, Sabino and Selman testified that Pistilli’s customers who were un- happy with work performed by that company returned their vehicles for further service by Paramus Ford. The Respondent repaired those vehicles which needed minor adjustments or service, but referred vehicles requiring major repairs to FMC. Accordingly, the Respondent’s employees who were formerly employed by Pistilli actually worked on the same vehicles that they serviced while employed by Pistilli. Thereafter, in the weekly pay period ending March 8, techni- cian Ozwal Pomaquiza was hired after having been transferred from All American Ford. In the pay period ending March 29, two technicians were hired, Daniel Martin, who was certified as a truck technician, and Frank Kuehn, for a total of six techni- cians. Neither Martin nor Kuehn had been previously employed by Pistilli. At the time of the hearing, seven technicians were employed, but Sabino stated that his plan was to employ 10 or 11 technicians as soon as the work load demanded it. Richard Selman is the brother of Stephen Selman and is the controller, principal, legal counsel and truck manager at All American Ford. He stated that Pistilli was certified by the FMC to sell and service only light duty trucks. It was not certified for medium duty, low cab forward trucks or box trucks and none of its employees, including Alvelo had such certification.7 In contrast, Paramus Ford obtained certification for all three 5 Onofrey’s name had been omitted from the Union’s list of mem- bers employed at Pistilli which was received in evidence. However, it is clear that Onofrey had been employed by Pistilli and was interviewed and hired by Sabino, as he testified. Sabino testified that Thomas Dun- can was hired as a technician, but his name does not appear on any payroll list received in evidence. 6 The lot attendant’s position is traditionally part of the service de- partment unit, and the lot attendant at Pistilli was included in the con- tractual unit. 7 As set forth above, Sabino stated that Alvelo had diesel truck certi- fication. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1022 classes of trucks in March, and employed someone, whose name he did not know, who was capable of servicing them. Selman testified that if Paramus Ford was unable to service a truck it would be sent to All American Ford, but later stated that he had no knowledge of any truck actually sent from Pa- ramus Ford to All American Ford. However, he stated that he knew that the mechanics from All American Ford travel to Paramus Ford to work on trucks. In this connection he stated that “everything is really one single conglomerate.” b. The parts department David Schroter, the parts director at All American Ford, tes- tified that he interviewed the Pistilli parts department employ- ees and, on about February 6, hired three: Dennis Hall, William Miller and Eric Freuh. Hall had been the parts department man- ager at Pistilli, Miller was the assistant parts department man- ager, and Freuh was a counterman/receiver. Union agent Ames testified that Miller’s duties at Pistilli were that of parts/counterman. During his employ, Pistilli changed his title to assistant manager but his duties remained the same. Ames stated that it was decided that Miller would remain in the unit since his duties did not include the ability to hire, fire, discipline or recommend discipline. Schroter testified that Miller, as the assistant parts department manager, spends 50% of his work time at the parts counter, and also controls the inventory in the parts department, orders parts, administers the return process, handles the cash sales log and reconciles cash at the end of the day. Schroter stated that no parts department employee violated any company rules since Paramus Ford began, and accordingly no disciplinary action was taken against anyone. He noted that in the absence of the parts manager, the assistant parts manager, Miller, has the same authority and responsibilities, including being in charge of the parts department. Miller is alone in the parts department every other Saturday, and he and Hall alter- nate weekend work with both sharing the manager’s duties. Mario Sierra was hired in the payroll week ending March 15. He had not been previously employed by Pistilli. Sierra worked as a porter/driver who works in the parts department or in other departments. His initial assignment was to assist in the identification and return of parts purchased by the Respondent from Pistilli but to be returned to FMC. He left his employment after a few months and was not replaced. However, Schroter stated that Mr. Lavoreiro was hired as a parts department driver in about April. Schroter noted that two other Ford dealerships located nearby had recently closed which resulted in an increase in the Respondent’s parts business. He anticipated that as the Respon- dent’s business, especially the wholesale business increases, he would add additional counter people and drivers in the period May to July, 2007. He noted that there was no fixed date on which he expected to hire more parts department employees, but stated that in the eight months that the Respondent was in operation, its business probably doubled, estimating that at the close of February, 2006 the parts business was about $20,000 and at the time of the hearing was about $67,000. c. The body shop As set forth above, when it took over the Pistilli operation, the Respondent discontinued the dealership’s operation of a body shop at the Paramus Ford facility. Instead it leased its body shop premises to an outside enterprise in which Stephen Selman has a 10% interest. The body shop, which has about six employees, is separated from the service shop by a door. The locker rooms and bathrooms that the service and parts depart- ment employees use are located in the body shop. d. Other employees Pistilli employed one detail employee who cleaned new ve- hicles before delivery. In contrast, at Paramus Ford, no service department employees perform detail work. Rather, such work is done by the outside detail company used at All American Ford. The clerical, payroll and administrative departments at Pistilli were moved to All American Ford. The names Den Duncan, Jasmin Hayek, Nellie Hutchinson, Jennifer Ryback, and Sandy Mortar appear on the payroll for the week ending February 15. Service director Sabino identified Duncan as a lot attendant, Hayek and Hutchinson as service department cashiers, and Rybak and perhaps Mortar as service advisors/writers who write repair orders based on customer requests for service.8 The service advisors’ desks are in the service department separated by a glass wall from the techni- cians’ shop. Their uniforms are similar to Sabino’s—a blue shirt and dress pants. The technicians wear mechanics’ uni- forms. Sabino stated that his goal is to hire a third service advi- sor as the work load requires. There is one warranty clerk who processes warranty claims for payment to the FMC and deals with the technicians, service advisors and service manager. 4. Repair orders and income in the months after the respondent opened The Respondent received 162 repair orders in February, 325 in March and 269 in April, 2006. Sabino stated, and the figures confirm that the number of repair orders increased monthly. For the month of February, the Respondent’s adjusted selling gross, the “bottom line” figure for the service department only was minus $4307.00, the March figure was $22,407, and April was $38,257.9 In his pre-trial affidavit, Sabino stated that the Re- spondent achieved normal operations in April measured by a steady flow and increase in business which the figures con- firmed. As a comparison, in September, 2006, the number of repair orders was 288 and the selling adjusted gross was $34,667. 5. The Respondent’s reorganization plans Stephen Selman signed a contract with an $800,000 deposit on April 11 to purchase a vacant warehouse in Hackensack, New Jersey, which is about three miles from Paramus Ford. The closing on the property is scheduled for January 8, 2007. 8 The term service advisor and service writer were used inter- changeably and will be referred to as service advisors. 9 The March, 2006 figures were not offered in evidence but the amounts for that month may be computed from the February and April monthly and “year to date” figures for both the repair orders and ad- justed selling gross. PARAMUS FORD 1023 Selman’s plan is to use that property as a “mega-service com- plex” which would house the service and parts departments of the entities in which he has an interest: Paramus Ford, All American Ford, and Great American Chevrolet. Accordingly, all the service technicians at the Respondent’s premises will be moved to the new Hackensack facility. The body shop currently at Paramus Ford will remain there. FMC and the General Motors Corporation have approved the new location. Work has begun on the site at which two dozen trees and two underground gasoline tanks were removed. Cer- tain environmental issues must be resolved such as the removal of one more underground tank and the removal of soil contami- nated with hydraulic fluid. Selman has spoken to contractors and engaged an architect who presented the plans to a commit- tee of the Hackensack planning board and obtained preliminary approval for the planned use of the property. That committee must present the proposal to the full planning board for final approval, which Selman expected to obtain in December. Sel- man estimated that it would take 30 to 60 days following the closing in order to conclude its planning for the configuration of the building, and then work would be done on the interior of the building and completed shortly thereafter. Sabino testified that it would take 60 to 90 days to move the operations to the new facility. Sabino testified that the new service facility is expected to have 100 work stalls or lifts and employ more than 40 techni- cians just to service the two Ford dealerships. Under the new project, the Respondent’s Paramus Ford loca- tion would be used as a new and used car sales facility, and its showroom would house about 25 cars.10 It would also have a facility for cleaning the cars for delivery and providing “light” oil changes. Sabino stated that he told service manager Vincent Marchesani about these plans but did not personally tell any of the employees. Nevertheless, according to Sabino, blueprints of the planned changes are displayed in the showroom and else- where. III. ANALYSIS AND DISCUSSION A. The Successorship Issue The test for determining successorship under NLRB v. Burns Security Services, 406 U.S. 272 (1972) is well established: An employer, generally, succeeds to the collective-bargaining obligation of a predecessor if a majority of its employees, consisting of a “substantial and representative complement,” in an appropriate bargaining unit are former employees of the predecessor and if the similarities between the two operations manifest a “‘substantial continuity’ between the enterprises.” Fall River Dyeing Corp. v. NLRB, 482 U.S. 27, 41–43 (1987). The Board will normally assess whether an employer is a successor as of the time a union makes its demand for recogni- tion and bargaining, provided the employer has already hired a substantial and representative complement of employees. See MSK Corp., 341 NLRB 43, 44–45 (2004). 10 An architectural drawing of the renovated Paramus Ford facility was prepared in January, 2006. The Respondent places all of these factors in issue. It ques- tions the appropriateness of the unit, whether there was a sub- stantial continuity between Pistilli and the Respondent, whether the Union made a proper demand for bargaining, whether a substantial and representative complement existed at the time the alleged demand was made in view of its plans for expan- sion, and whether a majority of its employees had been em- ployed by Pistilli Ford. I will first discuss whether the Pistilli unit remained appro- priate. B. The Appropriate Unit 1. The unit in the automobile dealership industry and the change in the unit upon the purchase by the Respondent Critical to a successorship finding is whether the bargaining unit of the predecessor employer remains appropriate for the successor employer. The Respondent challenges both the scope and the composi- tion of the unit set forth in the complaint which is claimed to be appropriate. That unit is “all service and parts department em- ployees” at Paramus Ford. As set forth above, the Union repre- sented Pistilli’s employees for the past 13 years in a unit of service department, parts department and body shop employees. The unit sought by the Union and alleged in the complaint need not be the only or even the most appropriate unit. All that is required is that the unit be an appropriate unit. Bartlett Collins Co., 334 NLRB 484 (2001); Gregory Chevrolet, 258 NLRB 233, 238 (1981). At the outset, I note that “it is settled that the employees in an automobile agency’s parts and service departments consti- tute an appropriate bargaining unit. . . .” Honda of San Diego, 254 NLRB 1248, 1263 (1981); Gregory Chevrolet, above; Dia- mond Motors, Inc., 212 NLRB 820, 829 (1974). Accordingly, the unit claimed is the unit traditionally found to be appropriate in this industry. The Respondent argues that inasmuch as the Pistilli unit in- cluded the body shop which the Respondent discontinued, and since its operation includes the servicing of medium duty and cab forward trucks which Pistilli never serviced, the unit has undergone such a profound change that it cannot be found to be appropriate. The Board has stated that “it is well established that the bar- gaining obligations attendant to a finding of successorship are not defeated by the mere fact that only a portion of a former union-represented operation is subject to a sale or transfer of a new owner, so long as the unit employees in the conveyed por- tion constitute a separate appropriate unit and comprise a ma- jority of the unit under the new operation. M.S. Management Associates, 325 NLRB 1154, 1155 (1998). As set forth above, the unit at Paramus Ford constitutes a separate appropriate unit consisting of the service and parts department—one that has been traditionally found to be appropriate. In addition, a change in the scale of an operation must be extreme before it will alter a finding of successorship. M.S. Management, above. Here, the Respondent assumed the significant portion of Pis- tilli’s operation and continued to operate it as a Ford sales and service facility. The main aspect, scope and function of its fa- cility remains an automobile dealership, as had been the case DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1024 with Pistilli. The fact that it does not operate a body shop and now services a different type of truck, is not sufficient to find the unit inappropriate or defeat a finding of successorship. Regarding the appropriateness of historical units, the Board’s longstanding policy is that a “mere change in ownership should not uproot bargaining units that have enjoyed a history of col- lective bargaining unless the units no longer conform reasona- bly well to other standards of appropriateness.” The party chal- lenging an historical unit bears the burden of showing that the unit is no longer appropriate. The evidentiary burden is a heavy one. “Compelling circumstances” are required to overcome the significance of bargaining history. Cadillac Asphalt Paving Co., 349 NLRB 6, 9 (2007). In this connection, I acknowledge that the historically recog- nized unit consisting of the service department, parts depart- ments, and body shop did not remain intact after the takeover by Respondent since it ceased operating a body shop. I note that the Pistilli unit consisted of 15 employees, only 2 of whom, Kumka (body technician) and Swietek (body shop) were body shop workers. Accordingly, the elimination of the body shop resulted in the reduction of only two unit employees. Accord- ingly, the issue remains “whether a historically recognized unit is no longer appropriate.” Trident, above at 739. The Respon- dent has not met its burden of proving that the historical unit, as changed by the Respondent’s takeover, is no longer appropri- ate. 2. The scope of the unit The Respondent argues that the appropriate unit must in- clude the employees of All American Ford as well as those of Paramus Ford, and accordingly asserts that Paramus Ford is a joint employer with All American Ford due to their interrela- tionship and the transfer of supervisors and employees between both entities. In order to establish that two otherwise separate entities oper- ate jointly for the purposes of labor relations, there must be a showing that the two employers “share or codetermine those matters governing the essential terms and conditions of em- ployment.” The employer in question must meaningfully af- fect “matters relating to the employment relationship such as hiring, firing, discipline, supervision, and direction.” The de- termination of whether two entities are joint employers “is es- sentially a factual issue.” Riverdale Nursing Home, 317 NLRB 881, 882 (1995) [citations omitted]. Apart from the testimony that the personnel policies and handbook in effect at All American Ford were applied to the employees at Paramus Ford, and Selman’s conclusory testi- mony that “everything is really one single conglomerate,” little other evidence was provided in support of a finding that those two companies shared or codetermined the terms and condi- tions of employment of their employees. It should be noted that there are separate supervisors for the service department and for the parts department—a service department manager and a parts department manager at the Respondent’s facility. There was no evidence that those supervisors did not act independ- ently of their superiors with respect to labor relations. I acknowledge that the directors of the service and parts de- partments at All American Ford initially interviewed and hired the employees who would work at Paramus Ford but this sim- ply constituted the establishment of its startup. There was no further evidence that those directors determined the terms and conditions of employment of the employees of Paramus. I fur- ther note that All American Ford transferred technicians and lot attendants from its facility to Paramus Ford when it opened. However, at least in a single-facility context, the Board “tradi- tionally has not accorded significant weight to . . . transfers from an existing location to a new facility.” Hilander Foods, 348 NLRB 1200, 1204 (2006). I also acknowledge that the clerical and administrative func- tion for Paramus Ford was moved to All American Ford, so to that extent there is centralized control of those functions. How- ever, there was no showing how that centralization affected the employees at Paramus Ford. The testimony that certain trucks that could not be serviced at Paramus Ford were taken to All American Ford for repair work which, on its own, had little effect on daily operations or labor relations. 3. The composition of the unit The Respondent also argues that if a unit of service and parts department employees is appropriate, all employees in those departments should be included in the unit, urging that the ser- vice advisors and the warranty clerk who are part of the service department should also be included. It cites R.H. Peters Chev- rolet, 303 NLRB 791 (1991), in support of its argument. In that case, the Board determined whether the service advisors had a community of interest with the employees in the service de- partment. The evidence established that the service advisors take the same annual examination as the mechanics, assign work to the mechanics in the absence of the service manager, ask mechanics to redo work, and may ask a mechanic to work overtime. Occasionally, a mechanic substitutes for a service advisor in the absence of the advisor and service manager. No such evidence is present in the instant case. At the hear- ing, the only evidence as to the duties of the service advisor was that he greets the customer, writes the repair order and works in proximity to the shop area. Such evidence is not suffi- cient to prove that the service advisors had a community of interest with the other employees in the service department. Although Union Agent Ames stated that service advisors are included in some of the Union’s contracts, they were always excluded from its contracts with Pistilli. Similarly, although the Board has found that a warranty clerk is includable in a unit of service department employees, Honda of San Diego, 254 NLRB at 1265, such a position has not historically been in- cluded in the Pistilli unit. I accordingly find and conclude that the service advisors and the warranty clerk are not properly includable in a unit of ser- vice department and parts department employees. The Respondent also argues that the Respondent’s Assistant Parts Manager William Miller is a statutory supervisor and must be excluded from the unit. Section 2(11) of the Act defines a supervisor as: Any individual having the authority, in the interest of the em- ployer, to hire, transfer, suspend, lay off, recall, promote, dis- PARAMUS FORD 1025 charge, assign, reward, or discipline other employees, or re- sponsibly to direct them, or to adjust their grievances, or ef- fectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. The legislative history of this section establishes that Con- gress sought to distinguish between two classes of workers: true supervisors vested with “genuine management prerogatives” and employees such as “straw bosses, lead men, and set-up men” who are protected by the Act even though they perform “minor supervisory duties.” NLRB v. Bell Aerospace Co., 416 U.S. 267, 280–281 (1974) (quoting S.Rep. No. 105, 80th Cong., 1st Sess., 4) (1947). The Board has used caution “not to construe supervisory status too broadly because the employee who is deemed a supervisor is denied rights which the Act is intended to protect.” Chevron Shipping Co., 317 NLRB 379, 381 (1995). The burden of proving supervisory authority is on the party asserting it, and such proof must be established by a preponder- ance of the evidence. Oakwood Healthcare, Inc., 348 NLRB 686, 688 (2006); Dean & Deluca, 338 NLRB 1046, 1047 (2003). Purely conclusory evidence is not sufficient to establish supervisory status. The Board requires evidence that the em- ployee actually possesses the Section 2(11) authority at issue. Golden Crest Healthcare Center, 348 NLRB 727, 731 (2006). It is clear that Parts Department Manager Dennis Hall, who has been regarded by the parties as a statutory supervisor, was in daily control of the operations of the parts department. There was no clear evidence that Assistant Parts Department Manager Miller, who reported to him, possessed or carried out any su- pervisory authority. The only evidence of statutory authority suggested by the Respondent is that in the absence of the parts manager, Miller has the same authority and responsibilities, including being in charge of the parts department. However, evidence of Hall’s supervisory authority was not presented at the hearing. Even assuming that Miller possessed Hall’s authority in his absence, it was shown only that Hall was absent on alternate Saturdays at which time Miller substituted for him. Indeed, it was testified that Miller was “alone” in the parts department on Saturdays, which means that he had no one to supervise at those times. In this regard it is significant that there was no evidence that the Employer consulted Miller regarding its decision to hire counterperson Freuh even though Miller was his ostensible supervisor while at Pistilli. Rather, Schroter, the parts director at All American Ford interviewed and hired Freuh. Auto West Toyota, 284 NLRB 659 (1987). Parts Manager Hall was Miller’s direct supervisor and was at the premises every day except alternate Saturdays. The parts department operated for more than 1 month, from February 15 to March 15, with just one additional person, Freuh, the coun- terperson. One additional counterperson, Sierra, was hired in March, and Lavorio, a driver, was hired in April. Accordingly, it would be unlikely that there would be two statutory supervi- sors, Hall and Miller, to supervise one person, Freuh, for 1 month, or even one or two additional persons, Sierra and La- vorio, in the following 2 months. In Auto West Toyota, above at 659, the Board found that Mark Goularte, an automobile dealership parts manager, was not a statutory supervisor. It noted that Goularte’s responsibili- ties, which included maintaining and ordering an adequate sup- ply of parts and conducting the department’s inventory, were not evidence of his supervisory status as “such activities are not included among the supervisory indicia of Section 2(11).” The Board further noted that taking inventory was a “routine mat- ter.” Goularte also spent 65 to 70 percent of his time perform- ing the same duties as the other parts department workers, in- cluding working as a counterperson. Here, Miller spent 50 per- cent of his time as a counterperson. See Grimaldi Buick-Opel, Inc., 202 NLRB 436, 442 (1973), where the Board found that an automobile dealership assistant parts manager was not a statutory supervisor. Miller’s duties were similar to those of Goularte. In addition to the above tasks, Miller administers the return process, han- dles the cash sales log and reconciles cash at the end of the day. Those duties do not confer supervisory status. Accordingly, based on the evidence presented at the hearing, I cannot find that the Respondent has met its burden of proving that Miller was a statutory supervisor. It has not been proven that Miller possessed any of the statutory indicia of supervisory status, or that he exercised any such authority with the use of independ- ent judgment. I therefore find that William Miller was at all times a unit employee. I accordingly find and conclude that the unit set forth in the complaint is an appropriate unit. Having found that the Pistilli unit remained appropriate even with the elimination of the body shop, the next questions are whether (a) there was substantial continuity in the Respon- dent’s operations at the time that it took over Pistilli’s facility; (b) a majority of the Respondent’s employees were former Pistilli employees; (c) the Respondent’s employees constituted a substantial and representative complement and (d) a proper demand for recognition and bargaining was made triggering an obligation to bargain. C. The Substantial Continuity of the Operations The determination whether a “substantial continuity” exists between the two companies includes “whether the business of both employers is essentially the same; whether the employees of the new company are doing the same jobs in the same work- ing conditions under the same supervisors; and whether the new entity has the same production process, produces the same products, and basically has the same body of customers.” Fall River, above at 43. In Fall River, the Supreme Court emphasized that in review- ing the facts pertaining to a successorship situation, the Board analyzes these factors primarily from the perspective of the employees—whether “those employees who have been retained will understandably view their job situations as essentially un- altered.” 482 U.S. at 43. Although each factor must be analyzed separately the totality of the circumstances is determinative. In Stewart Chevrolet, 262 NLRB 362, 364 (1982), the Board found substantial continuity in a similar business as here. The DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1026 successor employer opened its Chevrolet dealership engaging in substantially the same business operations at the same loca- tion, selling substantially the same product and services to the same customers as the predecessor prior to the sale. See Fre- mont Ford, 289 NLRB 1290, 1295 (1988). Here, the Respondent continued the operation of a Ford dealership at the same location as Pistilli had operated, and after about 1 week’s hiatus, began operations selling, servicing, and providing parts for Ford vehicles. The Respondent per- formed work on certain of the identical vehicles which had been serviced by Pistilli. The service and parts employees em- ployed by the Respondent who had been employed by Pistilli performed essentially the same functions—they serviced vehi- cles using the same lifts and provided parts which were pur- chased by the Respondent. The parts department supervisor formerly employed by Pistilli was retained by the Respondent. The same classifications, service technician, lot attendant, and parts counterman were employed by the Respondent as were employed by Pistilli. The operation was essentially unchanged despite the fact that the Respondent serviced medium duty trucks whereas Pistilli did not. Although the body shop was eliminated, this change “did not alter the essential nature of the employees’ jobs” because the service and parts department employees which contained the overwhelming number of positions in the Pistilli unit and the only positions in the Paramus Ford unit continued performing the same type of work that they had done, the servicing of vehi- cles, when at Pistilli. Fall River, above at 44. Indeed, the ser- vice department employees worked on, and the parts depart- ment employees provided parts for some of the same vehicles at Paramus Ford that they had worked on at Pistilli. The job classifications thus employed by the Respondent which in- cluded the service and parts departments, remained the same as those utilized by Pistilli. From the perspective of the employees it is clear that they viewed their job situation as essentially un- altered. I accordingly find and conclude that Paramus Ford is the successor to Pistilli Ford. Having found that the Respondent is the successor to Pistilli, I must find when the Respondent’s bargaining obligation with the Union matured. The Respondent’s bargaining obligation matured when two conditions were met. First, when the Re- spondent had hired a substantial and representative complement of employees, a majority of whom had been unit employees in a unit represented by the Union, and second, when the Union made an effective demand for recognition. Cadillac Asphalt Paving, above, slip op. at 4. These two conditions need not occur in any particular order. MSK Corp., 341 NLRB 43, 44 (2004). D. Whether a Majority of the Respondent’s Employees were Former Employees of Pistilli in a Substantial and Representative Complement of Employees “Where a union demands recognition from a prospective successor employer before that successor has hired a substantial and representative complement of employees, the union’s de- mand is deemed to be a continuing one and the successor’s bargaining obligation matures once it hires a substantial and representative employee complement.” MSK Corp., 341 NLRB 43, 44 (2004). A premature demand constitutes a continuing demand which triggers a bargaining obligation when an em- ployer opens for business. Fremont Ford, 289 NLRB 1290, 1295 (1988). In Fall River, above at 52, the Supreme Court held that “the successor’s duty to bargain at the ‘substantial and representa- tive complement’ date is triggered only when the union has made a bargaining demand.” The Court approved of the Board’s “continuing demand” rule in a successorship context. The Court also held that a union’s demand, made prematurely, before a substantial and representative complement of employ- ees has been employed, remains in force until the moment when the employer attains such a complement. As set forth above, the Union made a valid demand for bar- gaining on February 2. The demand was made prematurely before the Respondent employed a substantial and representa- tive complement of employees. Accordingly the question is whether, and at what time, such a complement was employed and whether, at that time, a majority of the Respondent’s em- ployees were formerly employed by Pistilli. The substantial and representative complement rule fixes the “moment when the determination as to the composition of the successor’s work force is to be made.” Fall River, above at 47. This rule “represents an effort to balance the objective of insur- ing maximum employee participation in the selection of a bar- gaining agent against the goal of permitting employees to be represented as quickly as possible.” Fall River, above at 47. In Fall River, the Court explained that in deciding whether a “substantial and representative complement” exists, the Board properly examines a number of factors including (a) whether the job classifications designated for the operation were occu- pied or substantially filled; (b) whether the operation was in normal or substantially normal production; (c) the size of the complement on the date of normal or substantially normal pro- duction; (d) the time expected before a substantially larger complement would be at work; and (e) the relative certainty of the employer’s expected expansion. 482 U.S. at 48. In this con- nection, the Board has noted that employees should not have to wait “months or years until the very last employee is on board” while at the same time an election should not be delayed when “in a relatively short period the employee complement is ex- pected to multiply many times.” Clement-Blythe Cos., 182 NLRB 502 (1970), cited in Fall River, 482 U.S. at 49 fn. 15. Regarding the standard for determining whether an employer has hired a substantial and representative complement of its workers, “the Board finds an existing complement to be sub- stantial and representative when approximately 30 percent of the eventual employee complement is employed in 50 percent of the job classifications.” Shares, Inc., 343 NLRB 455 fn. 2 (2004). Under this standard, a substantial and representative complement of employees was achieved upon the opening of the Respondent’s business on February 8, and at the start of normal or substantially normal operations on February 13. Thus, on that date, it employed seven unit employees11 which 11 Alvelo, Campagna, Onofrey, Karaminas, Miller, Freuh, and Dun- can. PARAMUS FORD 1027 constituted 63 percent of its total work complement of 11 as of the week ending March 29.12 In addition, the original seven employees worked in four (technician, lot attendant, assistant manager, and parts counterman) of the Respondent’s six classi- fications (combination parts employee and driver). Sabino testified that the Respondent intended to hire 10 to 11 technicians based upon anticipated increased business but at the time of the hearing 8-1/2 months later only 7 were employed. In Foodbasket Partners, 344 NLRB 799, 804 (2005), the Board found that a representative complement of employees was em- ployed where the employer operated its stores for about 2 weeks, and the employer was uncertain of the number of em- ployees necessary to run the stores, its hiring outlook was based on an evaluation of store sales, and was uncertain when, if ever, sales might justify the hiring of additional employees. “The Respondent’s employment needs were contingent upon unde- terminable future sales.” Accordingly, it would be inappropriate to conclude that a finding of whether a substantial and repre- sentative complement must be delayed until the Respondent hires additional technicians. Similarly, such a finding should not also await the consum- mation of the Respondent’s plans for a major change in its op- erations in which its unit employees would be transferred to a new “mega-service” facility in Hackensack and combined there with the service and parts departments of Selman’s two other dealerships. It should be noted that the contract for the facility was signed in April 2006, 2 months after the Respondent began operations at the former Pistilli facility. At that time, the expec- tations of the employees were that they would continue to work at the Paramus Ford location. In addition, the new operation is not expected to commence until about March 2007, more than 1 year after the employees began work at the Respondent’s facil- ity in Paramus. Delaying a finding of whether a substantial and representative complement has been achieved based on this plan for expansion would be inappropriate. In Fall River, when the employer had hired employees “in virtually all job classifications, had hired at least 50 percent of those it would ultimately employ in the majority of those classi- fications, and it employed a majority of the employees it would eventually employ when it reached full complement” and had begun normal production, the employer had reached its sub- stantial and representative complement. Fall River, above at 52. At that time a majority of the successor’s employees were for- mer employees of the predecessor, and a bargaining obligation attached. The Court noted that although the employer intended to expand to two shifts, such expansion was “contingent ex- pressly upon the growth of the business” and therefore that date was inappropriate as the date on which a representative com- plement would be found. In an expanded work force, the Board considers whether a union’s demand was premature. Considerations include an employer’s claim that it is not in full operation, an insufficient number of the contemplated job classifications are filled, and there are not a representative number of employees in a sub- stantial number of the existing job classifications. The Board 12 Those listed in the above footnote and Pomaquiza, Sierra, Martin, and Kueh. considers the total number of employees contemplated, the substance of the projected plans, the time until completion of those plans and whether the additional jobs merely involve distinct operations rather than separate and distinct job classifi- cations regarding skills required of the workers. If the Board determines that no significantly different functions or skills are required or the anticipated completion date is too distant or the projected plans are mere speculation or conjecture it will find that a representative complement of employees has been em- ployed. Scroll Casual, 278 NLRB 10, 15 (1986). Accordingly, the Respondent began normal or substantially normal operations on Monday, February 13, when it began servicing Ford vehicles. This finding is supported by the Re- spondent’s repair and financial records. Thus, as set forth above, 162 repair orders were processed in February 2006, when the operation was not operating for half that month. It thus appears that if the Respondent was open for business dur- ing the entire month of February, 324 orders would have been processed. This figure compares favorably with the month of March, in which 325 orders were processed. In April, 269 or- ders were processed. Sabino stated that the Respondent achieved normal opera- tions in April. Apparently this was so even though fewer repair orders were received that month than in the month before. This was an apparent reference to the adjusted selling gross which was $38,257 in April, and only minus $4307 in February and $22,407 in March. Of course, the amount of money received would vary depending on the type of work done. A more accu- rate measure of normality would be the number of orders re- ceived, which remained high in March. In the payroll week ending February 15, the Respondent em- ployed three technicians, two lot attendants, an assistant parts department manager, and a parts counterman, a total of seven unit employees.13 Of those seven, five were formerly employed by Pistilli and represented by the Union. The Respondent con- tinued to employ those same employees during the following 2 weeks. Thus, in the payroll weeks ending February 22 and March 1, there was no change in the employee complement. In the next payroll period ending March 8, one employee, technician Pomaquiza was added to the roster. He was not for- merly employed by Pistilli, and thus the employee complement consisted of five former employees of Pistilli in a unit of eight workers. The following payroll week ending March 15, employee Si- erra was hired for work in the parts department. Inasmuch as he was not formerly employed by Pistilli, the unit consisted of five former Pistilli workers in a unit of nine employees. Accordingly, for a 1-month period from the start of the Re- spondent’s operations, employees formerly employed by Pistilli represented a majority of the total unit at the Respondent. As set forth above, beginning in the payroll week ending March 29, with the hire of two service technicians, the former Pistilli workers no longer represented a majority of the Respondent’s unit employees. 13 Alvelo, Campagna, Onofrey, Karaminas, Miller, Freuh, and Dun- can. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1028 It should be noted that at the time of the hearing on October 31, 8-1/2 months after the Respondent began operating, seven service technicians were employed. The final three technicians were hired in the payroll week ending March 29. Four techni- cians had been employed from February 15 through the week ending March 15. I accordingly find and conclude that as of February 13, the Respondent employed a substantial and representative com- plement of employees at the Paramus Ford facility, a majority of whom in an appropriate unit had been formerly employed by Pistilli. E. The Demand for Bargaining “The critical date for determining the union’s majority status [as a successor employer] is the date on which the request for bargaining is received by the employer.” Pre-Engineered Building Products, 228 NLRB 841 fn. 1 (1977). A valid request to bargain need not be made in any particular form, or in haec verba, so long as the request clearly indicates a desire to negotiate and bargain on behalf of the employees in the appropriate unit concerning wages, hours, and other terms and conditions of employment. Marysville Travelodge, 233 NLRB 527, 532 (1977). As set forth above, the Union faxed letters on February 2 to FMC and to Selman at All American Ford. I find that both let- ters, taken separately or together, constitute valid demands for bargaining. The letters of February 2 constituted a demand for recognition and a continuing demand for recognition and bar- gaining which matured into a bargaining obligation on Febru- ary 8, when the Respondent employed a representative com- plement of unit employees. MSK Corp., 341 NLRB 43, 45 (2004). The fact that the letters were not addressed to the Respon- dent is irrelevant. At the time the letters were sent the sale had not occurred and apparently the Union was not aware of the name of the purchaser. Eldorado, 335 NLRB 952, 954 (2001). In finding a proper demand for bargaining made to an individ- ual who owned the successor but which did not name the suc- cessor, the Board noted, as is equally applicable here, that the issue is not whether the union “got the name of the business right, but whether the right person got the letter.” Here Selman and FMC received the letters and no reply was made. The letter to FMC is expressly entitled “bargaining demand and information request.” The Union’s letter informs FMC that it is the exclusive bargaining representative of the employees employed by Pistilli. It advises FMC, that “as successor” it expects that it will employ all current employees represented by the Union and maintain the current terms and conditions of employment. The Union’s letter identifies FMC as the successor to Pistilli, and expressly demands bargaining from FMC as the exclusive representative of the employees. Such a demand is appropriate inasmuch as FMC is the 80 percent owner of the Respondent. Accordingly, the Union’s letter to FMC operated as a clear and express demand for recognition and bargaining. The letter also asks that FMC maintain the current terms and conditions of employment. 14 The Board has found an effective demand for bargaining where, among other things, a union has demanded that a successor employer continue to pay the union benefits which the employees enjoyed under the contract with the predecessor. Cadillac Asphalt Paving, above, slip op. at 5. The letter to Selman advises him that the Union represents the service technicians at Pistilli. The letter informs Selman that Ames had been informed that Pistilli’s workers have submitted employment applications to him in anticipation of being hired when he assumes the operation of the dealership. Ames asks Selman to provide him, as the employees’ representative, in- formation as to the date they will be employed by his company, and the basis for not hiring those not selected. Although the terms “recognition” and “bargaining” are not contained in the letter to Selman, such “magic words” are not necessary. MSK Corp., 341 NLRB 43, 45 (2004). The combina- tion of the Union’s identification of itself as the representative of the service technicians and its request for information con- cerning the status of the employees’ applications for employ- ment and if any are not hired, the reasons therefore, contem- plates that the Union is seeking to bargain in behalf of the tech- nicians over their hire. In Eldorado, above at 953, the union sent a letter addressed to “John Gavin, president of Eldorado.” That company was the predecessor employer, but Gavin was the owner of the succes- sor company operating as J.C. Media Group. The letter did not expressly demand recognition, but sought information as to what had occurred at the shop, the relationship between the two businesses, which employees were still working and their terms and conditions of employment at the new business. The letter stated that it was a grievance under the contract. The Board found that a request for information is tantamount to a request for bargaining, and that the letter indicated that the union was “seeking to fulfill its role as the exclusive bargaining represen- tative of the former Eldorado employees.” The Board con- cluded that the Union’s demand “reasonably informed the Re- spondents that the Union considered the Respondents to be a successor . . . and that the Union sought to represent the Re- spondents’ employees.” Eldorado, above at 954. The result should be the same here. The Union advised Sel- man that it represented the employees at Pistilli and informed him that, despite completing job applications, the employees had not been notified of their date to start work when he takes “over the dealership.” The Union, as the employees’ represen- tative, asked Selman for the status of the employees’ job appli- cations. In asking for information—that Selman provide the Union with reasons for not hiring the employees it represents— the Union clearly suggests that it intends to bargain with Sel- man concerning the reasons for his failure to hire such employ- ees. In doing so, and in inquiring about the status of the appli- cations, the Union sought to fulfill its role as the representative of the former Pistilli employees. Eldorado, above. Where an employer, although denying that a union requested bargaining, conceded that its agent said that he would see if he 14 A request that a successor employer sign or honor a contract be- tween the predecessor and the union constitutes a valid demand for recognition. MSK Corp., 341 NLRB 43, 45 (2004). PARAMUS FORD 1029 could obtain reinstatement for the employees or “do what he could for them,” the Board held that this was a clear expression of intent to bargain in their behalf. Marysville, above at 533. Similarly, here the Union intervened in behalf of the former Pistilli employees which it had represented in an effort to ob- tain their employment with the successor employer. Thus the Union’s letter to Selman was also a clear expression of its in- tent to bargain in their behalf. The Union’s requests “contem- plate and subsume a demand for recognition. . . .” Stanford Realty Associates, 306 NLRB 1061, 1066 (1992). In these circumstances, the Respondent “understood or rea- sonably should have understood” that Ames was asking that the Respondent, as the prospective successor to Pistilli, recognize the Union and bargain with it for a contract covering the unit employees. MSK Corp., 341 NLRB 43, 45 (2004). The Union thereafter filed a charge against the Respondent which further demonstrates, clarifies, and reaffirms its request for recognition and bargaining.” Stanford, above at 1066; Eldo- rado, Inc., 335 NLRB 952, 954 (2001). The Respondent argues that no clear demand was made by the Union in an appropriate unit. The Union’s February 2 letter to FMC stated that it represented the “employees” employed by Pistilli. The letter to Selman stated that it represented the “ser- vice technicians.” The unit alleged to be appropriate in the complaint is “all service and parts department employees.” The unit set forth in the contract between Pistilli and the Union is “all service, body shop and parts department employees.” The Board has held that although a union demanded bargain- ing in a different unit than that set forth in the complaint, such a deviation was not sufficient to find that no proper demand was made. In Hydrolines, Inc., 305 NLRB 416, 420 (1991), the Board stated: [I]n a successorship situation, the union, by making a bargain- ing demand, is attempting to preserve its status as the bargain- ing representative of an already defined unit, or that portion of the unit which has been conveyed or preserved. The suc- cessor, however, may add employees. It may add, eliminate, or change job classifications. It may have plans to expand or change its operations. The union may be unaware, or at least uncertain, as to the successor’s plans for its hiring and opera- tions. Therefore, the union’s bargaining demand may be made before it is clear which of the successor’s employees belong in the unit, and the union cannot be expected or required to take all possible contingencies into account in making its de- mand to bargain. The Board further stated that in the circumstances presented, “any fair reading of the union’s demand letter requires the con- clusion that the union sought to represent the respondents’ em- ployees. . . . At the very least, the union’s demand shifted the burden to the respondents to contact the union and seek clarifi- cation of the bargaining demand. . . . Any doubt that the re- spondents had regarding the bargaining unit that the union had sought to represent was removed when the complaint issued setting forth the unit alleged to be appropriate.” Hydrolines, above at 420 fn. 29. Here, at the time the demand was made, before the purchase of Pistilli Ford, the Union could not have been aware of the classifications of employees the Respondent would employ or the type of work the Respondent would undertake. However, as in Hydrolines, the Union clearly sought to preserve its status as the former employees’ representative, and also sought to repre- sent the Respondent’s employees. I accordingly find and con- clude that on February 2, the Union effectively demanded rec- ognition and bargaining of the Respondent, and that the Re- spondent made no reply thereto. Conclusion As set forth above, the Union made a valid although prema- ture demand for recognition on February 2. Six days later, on February 8, the Respondent hired former Pistilli employees in the unit represented by the Union which at that time and con- tinuing through March 29, constituted a majority of the Re- spondent’s employees. I have found above that the Pistilli unit remained appropriate despite the fact that the body shop was no longer operated by the Respondent. I have also found that there was substantial continuity in the operations of Pistilli and the Respondent, as the Respondent continued to operate its predecessor’s facility as a Ford dealer- ship at the same location with a limited hiatus, using essentially the same equipment, with the same parts department supervi- sor, and servicing Ford vehicles and in some instances the iden- tical vehicles serviced by the predecessor. The employees of the Respondent who were former employees of Pistilli clearly would have viewed their job situations as “essentially unal- tered.” I have thus found that the Respondent is a successor to Pistilli Ford. In addition, there was a substantial and representative em- ployee complement on February 13, since the job classifica- tions were occupied or substantially filled and the Respondent’s operation was in normal or substantially normal production. Although the demand for bargaining was made prior to the hire of any employees, the demand is a continuing demand which matured into a bargaining obligation on February 8, when the Respondent employed a representative complement of unit employees or on February 13 upon the Respondent’s as- sumption of normal or substantially normal operations. Accordingly, I find that the Respondent is the successor to Pistilli and was obligated to recognize and bargain with the Union for its employees employed in the service department and parts department. Inasmuch as the Respondent has not replied to the Union’s demands for recognition and bargaining it has violated Section 8(a)(1) and (5) of the Act. CONCLUSIONS OF LAW 1. The following employees constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act: All service and parts department employees employed by Pa- ramus Ford, excluding guards and supervisors as defined by the National Labor Relations Act. 2. Since February 8, 2006, Local 355, United Service Work- ers Union, IUJAT, AFL–CIO has been the exclusive collective- bargaining representative of the employees in the above unit. 3. By refusing to recognize and bargain with Local 355, United Service Workers Union, IUJAT, AFL–CIO as the ex- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1030 clusive collective-bargaining representative of its employees in the appropriate unit set forth above, the Respondent has en- gaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. I shall recommend that the Respon- dent be ordered to cease and desist and to take certain affirma- tive action designed to effectuate the policies of the Act. As I have found that the Respondent has illegally failed and refused to recognize and bargain with the Union, I shall order the Re- spondent to recognize the Union as the exclusive collective- bargaining representative of its employees in the above- described unit and, on request by the Union, meet and bargain in good faith. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended15 ORDER The Respondent, Paramus Ford, Inc., Paramus, New Jersey, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain in good faith with Local 355, United Service Workers Union, IUJAT, AFL–CIO as the exclusive collective-bargaining representative of its employees in the below-described appropriate bargaining unit: All service and parts department employees employed by Pa- ramus Ford, excluding guards and supervisors as defined by the National Labor Relations Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) On request, bargain with the Union as the exclusive rep- resentative of the employees in the following appropriate unit concerning terms and conditions of employment and, if an un- derstanding is reached, embody the understanding in a signed agreement: All service and parts department employees employed by Pa- ramus Ford, excluding guards and supervisors as defined by the National Labor Relations Act. (b) Within 14 days after service by the Region, post at its fa- cility in Paramus, New Jersey, copies of the attached notice 15 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. marked “Appendix.”16 Copies of the notice, on forms provided by the Regional Director for Region 22, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in con- spicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employ- ees employed by the Respondent at any time since February 8, 2006. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this No- tice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain on your behalf with your employer Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties WE WILL NOT fail and refuse to recognize and bargain in good faith with Local 355, United Service Workers Union, IUJAT, AFL–CIO as the exclusive collective-bargaining repre- sentative of its employees in the below-described appropriate bargaining unit: All service and parts department employees employed by Pa- ramus Ford, excluding guards and supervisors as defined by the National Labor Relations Act. WE WILL NOT in any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL on request, bargain with the Union as the exclusive representative of the employees in the following appropriate unit concerning terms and conditions of employment and, if an 16 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” PARAMUS FORD 1031 understanding is reached, embody the understanding in a signed agreement: All service and parts department employees employed by Pa- ramus Ford, excluding guards and supervisors as defined by the National Labor Relations Act. PARAMUS FORD, INC.