Bay Area Mack

BAY AREA MACK Transportation Equipment Services, Inc d/b/a Bay Area Mack and Machinists and Automotive Trades District Lodge No 190, Local Lodge 1546, International Association of Machinists & Aerospace Workers, AFL-CIO, Teamsters Local 78, International Brotherhood of Team- sters, Chauffeurs Warehousemen & Helpers of America, AFL-CIO Case 32-CA-8608 March 8, 1989 DECISION AND ORDER BY MEMBERS JOHANSEN, CRACRAFT, AND HIGGINS On January 20, 1988, Administrative Law Judge Timothy D Nelson issued the attached decision The Respondent filed exceptions and a supporting brief and the General Counsel filed limited cross- exceptions The National Labor Relations Board has delegat- ed 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, i findings, and conclusions and to adopt the recommended Order2 to the extent consistent with this Decision and Order We agree with the judge that the Respondent in- curred successor bargaining obligations3 when it commenced operations on December 3, 1986, and we adopt the judge's holdings as to the 8 (a)(5) and independent 8(a)(1) violations with respect to the Respondent's refusal to recognize and bargain with the Machinists and Teamsters and related illegal conduct However, we disagree with the judge's failure to find an 8(a)(1) violation concerning the Respondent's statements to applicants that the Re- spondent was starting up as a nonunion company and that it was up to the employees and the Re- spondent to ensure that the Company remained nonunion In Kessel Food Markets,4 we found com- ' The Respondent has excepted to some of the judge s credibility find rags The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 We agree with the judge s findings that in the circumstances of this case a visitatonal clause need not be included in the Order See Cherokee Marine Terminal 287 NLRB 1080 (1988) We also agree with the Gener al Counsels limited cross-exception that the Order should include make whole provisions with respect to the Respondents unlawful unilateral changes 3 NLRB v Burns Security Services 406 U S 272 (1972) 4 Kessel Food Markets 287 NLRB 426 (1987) 125 parable statements in similar circumstances to be violative of Section 8(a)(1) and we so find here 5 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Transportation Equipment Services, Inc d/b/a Bay Area Mack , Oakland, California, its offi- cers, agents, successors , and assigns , shall take the action set forth in the Order as modified 1 Insert the following as paragraph 1(f) and re letter 1 (f) as 1(g) "(f) Telling job applicants that the Company will operate nonunion " 2 Substitute the following for paragraph 2(c) "(c) On the Unions' demand, rescind any changes implemented since December 11, 1986, of fecting the unit employees' wages, hours, or other terms and conditions of employment and make whole employees for any losses they may have in- curred because of the Respondent's unilateral changes " 3 Substitute the attached notice for that of the administrative law judge 5 Member Cracraft agrees that the statements are unlawful She notes that the statements-that the Company would start up nonunion and that it was up to the employees to decide whether it would remain non union-were made before the Respondent had hired its employee com plement and thus at a time when it did not know if it would operate union or nonunion She finds that such statements made in this context suggest to applicants that the Respondent will not hire employees who support the Union Thus she finds that these statements like the state ments in Kessel above are coercive and violate Sec 8(a)(1) APPENDIX NOTICE To EMPLOYEES 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 the National Labor Relations Act and has ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representa tves of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities WE WILL NOT refuse to recognize and bargain collectively with Machinists and Automotive 293 NLRB No 13 126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Trades District Lodge No 190, Local Lodge 1546, International Association of Machinists & Aero- space Workers, AFL-CIO and Teamsters Local 78, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America, AFL-CIO with respect to all matters affecting the wages, hours of work, and other terms and condi- tions of employment of our employees working in classifications covered by the labor agreement which was in effect with Mack Trucks, Inc imme- diately before we took over the Mack dealership WE WILL NOT make changes in those bargaining unit employees' wages, hours, or working condi- tions without first notifying the Unions and giving them a reasonable time to bargain over any such changes WE WILL NOT tell employees that we are refus- ing to recognize or bargain with the Unions WE WILL NOT solicit employees to obtain signa- tures on antiunion petitions WE WILL NOT tell job applicants that the Com pany will operate nonunion WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act WE WILL immediately confer recognition on the Unions as the exclusive representative of our bar gaining unit employees, on the Unions' request, WE WILL meet and bargain collectively in good faith with them with respect to any and all mandatory bargaining subjects and embody any understanding reached in a signed agreement and on the Unions' demand, WE WILL rescind any changes in wages, hours, or working conditions of unit employees that we made on or after December 11, 1986, and make whole employees for any losses they may have incurred because of our unilateral changes TRANSPORTATION EQUIPMENT SERV- ICES, INC D/B/A BAY AREA MACK Douglas Gallop Esq for the General Counsel Morton Orenstein Esq (Schacter Kristoff Ross Sprague & Curiale), San Francisco, California for Respondent Bay Area Mack Jonathan Siegel Esq (Boltuch & Siegel), for Joint Charg ing Parties Machinists and Teamsters DECISION STATEMENT OF THE CASE TIMOTHY D NELSON, Administrative Law Judge I heard this 8(a)(1) and (5) case in trial at Oakland, Cali fornia, on July 21 and 22, 1987 It arose on January 5 1987 when the above named Machinists and Teamsters Unions (collectively the Unions) filed a joint charge' against Transportation Equipment Services, Inc d/b/a Bay Area Mack (the Respondent) Following his investi gation of the charge, the Regional Director issued an original complaint on March 10, and an amended com plaint on May 19 1987 Counsel for the General Counsel further amended the complaint at the trial The ultimate complaint alleges in substance that Re spondent took over a truck dealership whose employees under previous ownership were represented by the Unions, and that Respondent violated a successor em ployer s duties under Sections 9 and 8(a)(5) of the Act by refusing, after the Unions' demand, to recognize or bar gain collectively with them Additionally, the complaint alleges as distinct 8(a)(5) violations that Respondent uni laterally changed certain terms and conditions of em ployment of the bargaining unit employees 2 and that it formed and dealt directly with an employee grievance committee The complaint also alleges that Respondent independently violated Section 8(a)(1) by various acts discussed elsewhere Respondents answer denied all alleged wrongdoing and, as amended it sets forth these affirmative defenses 3 (a) the Unions lacked majority support from the unit em ployees at the time of the alleged unfair labor practices 4 (b) Respondent was in any case privileged in having re fused the Unions bargaining demands and in making uni lateral changes because it was possessed of objective considerations warranting a good faith doubt that the Unions enjoyed majority support and (c) in any case Re spondent had no duty to recognize or bargain with the Unions because the Unions are a different entity than the joint bargaining representative that represented employ ees in the predecessor operation On the entire record my observation of the witnesses as they testified and my assessments of the inherent probabilities I make the following FINDINGS OF FACT I OVERVIEW On December 3 1986 5 pursuant to a prior agreement and sale of assets, Respondent took over a Mack Truck ' The charge signed by counsel for the joint Charging Parties identi fled the Charging Parties as (emphasis added) Machinists District Lodge No 190 through its Local Lodge 1546 and Teamsters Local 78 Hereafter I will refer to the two Machinists entities separately as District Lodge and Local Lodge where less specificity is required I will refer to them together as Machinists I will call Teamsters Local 78 Teamsters z The complaint does not attack Respondents unilateral imposition on the bargaining unit of an initial package of wages and benefits as of its takeover moreover the General Counsel disclaimed at trial any chal lenge to Respondents right to have set such initial terms as that phrase is used in NLRB v Burns Security Services 406 U S 272 294-295 (1972) a At trial without objection I permitted Respondent to amend its answer to plead affirmative defenses that had not been averred in its original answer 4 Respondent has not pursued this particular defense on brief my deci sion is intended to dispose of it in any case 5 All directly relevant events occurred in the winter of 1986-1987 BAY AREA MACK sales and service dealership in Oakland from its previous owner operator, Mack Trucks, Inc (MTI) Since then Respondent has continued to conduct from the same lo cation substantially the same business as MTI, with sub stantially the same customers 6 MTI s truck service and repair employees had been historically covered by a serves of labor agreements be tween MTI and a joint representative, identified in the successive contracts as including not only the Unions (Machinists and Teamsters), but a third union entity as well, Auto, Marine and Specialty Painters Union Local No 1176 (Painters) On this record, only the Unions played any role, in fact, in the negotiation and adminis tration of the agreements to which MTI has been bound since 1979 7 Respondent began operations on December 3 with 25 persons employed in formerly union represented classifi cations A majority of those 25 unit employees had been similarly employed by MTI immediately before Re spondent's takeover Although the unit complement in creased gradually under Respondents operation (to 41 employees by the time of this trial, about 7 months later), I find-and Respondent does not argue otherwise-that as of December 3 Respondent was in full operation with a "substantial and representative complement of em ployees See Fall River Dyeing Corp v NLRB, 482 U S 27 (1987), clarifying Burns, supra Respondent has admittedly refused demands made by the Unions, the first of which it received on December 11, to recognize and bargain collectively with them as the unit employees joint representative At all times since its takeover Respondent has admittedly acted uni laterally with respect to unit employees wages, hours of work, and other terms and conditions of employment The record contains undenied testimony showing that Respondents agent, Pinto, approached at least two bar gaining unit employees in January and urged them to get additional employees to sign an antiunion petition that had been circulating in the dealership since no earlier than December 12 The record also shows that it was not until on or about January 22 that Respondent re ceived a copy of the petition, which by then contained signatures from a majority of unit employees A Details Regarding the Historical Bargaining Relationship These background summaries will suffice to explain the actual roles of Machinists Teamsters and Painters in the historical joint representation arrangements affecting 8 The pleadings establish that in the roughly 6 months between De cember 3 and the date of the amended complaint Respondent a Califor nia corporation engaged in nonretail sales and services made more than $50 000 worth of purchases directly from suppliers outside California ° There is no evidence that Painters received notice of this proceeding from the Board Counsel for the Unions represented that he had personal ly apprised an agent of Painters of the pendency of these proceedings but the parties were unable to stipulate to the represented fact As an ex ercise of discretion I have directed that a copy of this decision be served on Painters as a nominal party to the contract Painters may choose to petition the Board to intervene to protect any arguable interest it might claim in these proceedings Similarly Painters may choose to disclaim any interest in these proceedings 127 the Mack dealerships unit employees 8 Since the early 1970s, all labor agreements binding MTI have facially purported to have been negotiated by a joint representa tive consisting of Machinists," Teamsters, and Painters, the agreements refer to the three unions collectively as the Union In fact, Painters has played no role in the negotiation or administration of any of the recent agree ments negotiated for MTI employees and none of MTI's employees have ever been treated by the contracting parties as being subject to Painter s jurisdiction 10 Paint ers nominal appearance on the more recent contracts binding MTI seems to have stemmed from industry bar gaining patterns which had become established by the early 1970s At that time Machinists, Teamsters, and Painters were part of a trades council (EBAC) which bargained with a multiemployer association (IEDA) of which the Mack dealership was then a member Some of IEDA's member employers employed persons recog nized as being within Painters jurisdiction but the Mack dealership was not one of them In 1979, however, an ticipating the termination of the then governing associa tion agreement, MTI withdrew from IEDA bargaining and directly negotiated first an extension agreement signed on `the Unions side only by an agent of Ma chinists, then eventually signed a new, separate, 1979- 1982 contract, apparently patterned on the IEDA settle ment, which persisted in naming Painters as one of the union parties and which contained signatures of repre sentatives of all three unions on its final page Bargaining for the 1982-1985 agreement, and for the most recent 1985-1986 agreement was conducted solely between agents of Machinists and Teamsters, on the one hand, and agents of MTI on the other, but the resulting con tracts in each case nevertheless continued to contain the names and signatures of Machinists, Teamsters, and Painters As a matter of historical practice at the Mack dealer ship-before and since 1979-most of the contractual classifications have been treated by the contracting par ties as falling within Machinists' jurisdiction only a few classifications were recognized as within Teamsters ju risdiction and none were recognized as within the Paint ers jurisdiction Suggestive of the fact that Machinists played a central role Machinists was the only agent of the joint representative who actually signed interim ex 8 For all findings in this section I rely on the exhibits of record as supplemented by the credible uncontradicted to timony of Machinists agents Joseph Bobo and Bernie Tolentino about historical practices sur rounding the negotiation and administration of the successive agreements in question particularly that Painters signatures on the recent basic con tracts were obtained pro forma and that the parties to the historical rela tionship had always treated certain employees who sometimes performed truck repair painting work at the Mack dealership as being in Machin ists -rather than Painters -jurisdiction 8 Recent contracts have named the District Lodge as the Machinists entity the District Lodge has in fact negotiated and administered the contracts on behalf of the Local Lodge pursuant to the Local Lodge s delegation of its historic bargaining rights 10 Jurisdiction here is a familiar notion linked to unit employees job classifications It affects how the contractual union security clause is ap plied it governs how Teamsters and Machinists have divided represents tional functions among themselves The concept is recognized but not specifically defined in recent labor agreements governing the Mack deal ership see e g the 1985-1986 labor agreement (G C Exh 7) at sec 12 128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tension agreements at two different historical points when the underlying contracts were due to expire This happened once in 1979 (G C Exh 5), and again on August 26, 1986, only days before the most recent 1985- 1986 contract, nominally involving the three unions, was due to expire (G C Exh 8) Further indications of Ma chinists central bargaining role are found in the October 8 termination agreement, described below, negotiated between MTI and Machinists in anticipation of the sale of the Mack operation to Respondent B Details Surrounding the Alleged Unfair Labor Practices 1 Respondents hierarchy Respondents principal officers and managers are, Noel Pinto, its one half owner and president, and Robert Mowers, its secretary treasurer who also owns the re maining corporate half Pinto played a more direct role in the day to day management of the parts and service departments in which the unit employees work Jim Morrison, the service manager, directly supervises the unit work force and is conceded to be a supervisor within the meaning of Section 2(11) of the Act 2 Respondents declared intention to operate nonunion As part of its overall plans, firmed up by October, to sell the dealership to Respondent, MTI had negotiated directly with Machinists for a specific agreement, signed on or about October 8 to govern unit employment terms in the period until the anticipated sale would take place on December 3 11 Pinto and Mowers admittedly informed of MTI s his torical labor relationship and of the terms of its recent agreements, admittedly believed that the October 8 ter mination agreement' signed by MTI and Machinists con stituted a forfeiture by the historical joint representative of any rights to recognition by Respondent after the takeover 12 As a consequence Mowers and Pinto admit tedly told several unit employees of MTI during employ ment interviews in November that Respondent intended to start up as a nonunion company, all in the course of explaining the initial terms and conditions under which employees would work and be compensat ed Mowers credibly stated that he emphasized to appli cants that whether Respondent remain[ed] nonunion would be up to the employees No evidence contra dicts Mowers in this regard and I rely on his explana tions for an understanding of the context i i The termination agreement provided inter alia that Effective December 2 1986 at midnight the labor agreement dated September 1 1985 to August 31 1986 and further extended by our letter of agreement dated August 26 1986 will become null and void and that Effective the end of their shift on December 2 1986 the employees covered by the referenced labor agreement will have their employment with the Compa ny terminated 12 Respondent no longer seeks to defend Respondents admitted refus als to bargain on the ground (erroneously entertained by Respondents agents at material times-see e g Park Ohio Industries 257 NLRB 413 (1981) enfd 702 F 2d 624 (6th Or 1983) that the termination agreement with MTI amounted to a waiver or disclaimer by the joint representative of future rights to recognition by Respondent 3 Refusals to bargain On December 11, Respondent received a hand deliv ered letter addressed to Pinto from the Unions attorney Jonathan Siegel, which stated December 11 1986 Hand Delivery Noel Pinto, Partner Bay Area Mack 425 Market Street P 0 Box 24570 Oakland CA 94623 Re Collective Bargaining Between Yourselves and Machinists Automotive Trades District Lodge No 190 through its affiliated Local Lodge 1546, and Teamsters Local 78 Dear Mr Pinto Please be informed that I represent the two unions which have previously jointly represented the bargaining unit at your facility That is, I repre sent Machinists Automotive Trades District Lodge No 190, through its Local Lodge 1546, and Team sters Local 78 I am informed that on or about December 3, 1986 you assumed the operation of the above ad dressed facility which engages in the sales and serv ice of new and used trucks service and repairs to the public, and operation of a parts department As you know the unions above named have previously jointly represented a bargaining unit comprised of mechanics parts employees and pickup and delivery employees at the facility I am informed that when you assumed the oper ation, under the name of Bay Area Mack, you re employed a majority of the previous bargaining unit in their jobs I am further informed that this group of members of the bargaining unit comprise ap proximately 90% of your current workforce in these jobs Therefore there can be no question that under the National Labor Relations Act you are obligated to recognize and bargain in good faith with the unions as the certified collective bargaining repre sentatives for the bargaining unit of employees cur rently employed at your facility Therefore, I would hereby request that you or your authorized repre sentative contact me immediately to arrange for dates to sit down to reach a suitable and acceptable collective bargaining unit sic between yourself and our unions After you contact me, I will arrange for suitable dates with the union representatives to sit down and bargain over the contract I look forward to hearing from you within five working days of your receipt of this letter Failure to recognize and bargain in good faith with the unions will result in charges being filed against you before the National Labor Relations Board Very truly yours /s/ Jonathan H Siegel BAY AREA MACK 129 Within a few days of receiving the first letter from At torney Siegel, Mowers dispatched a reply letter which bore no date, but which was received by Siegel s office on December 17 In material part, Mowers wrote We are in receipt of your letter dated 12 11 86 re garding a bargaining unit question Transportation Equipment Services, Inc has no agreement with your clients We are seeking guidance from our legal counsel and will proceed appropriately after consultation On December 22, Siegel replied, stating materially I wish to emphasize that I fully respect your right to seek legal counsel concerning this situation However, we are totally persuaded that the position which I took in my December 11 letter is correct Therefore unless I have received notice from you that you are willing to so recognize and bargain with the unions in good faith by the close of business on December 26, charges will be filed with the National Labor Relations Board concerning these matters I sincerely hope that we may be able to reach a satisfactory resolution without the need for any legal proceedings On December 24, Mowers wrote back stating maten ally We have been advised" that since a termination agreement copy attached, has been signed between Mack Trucks, Inc and the IAM&AW Local #1546, Teamsters Local 78, and Painters Union #1176,14 that Transportation Equipment Services, Inc has no obligation to recognize, bargain, or negotiate with you or your clients Our understanding of that letter of termination is that it is in fact an extinction of any and all liabil ities to Transportation Equipment Services Inc with regards to your clients Although the exact timing is not clear, Mowers had admittedly caused copies to be posted in the shop of all the foregoing correspondence assertedly to keep em ployees apprised of these developments Consistent with the recollections of employees Fern and Lightfoot I find that each letter was posted in due course as it was writ ten or received starting in `the middle of December (Fern s recollection) In early January Respondent unilaterally altered the traditional swing shift schedule, less than a month later it reimposed the traditional schedule I credit the undis puted testimony of employee Fern that, also in early January, Respondents service manager Jim Morrison, asked mechanics to elect someone from the mechanics' group to represent the mechanics' Thereafter Respond ent s agents (including Morrison and General Manager i S Pinto testified that this advice came from a third party acquaintance in the industry and not from Respondent s counsel 14 In fact only Machinists had signed the termination agreement Pinto) met and dealt directly with such a multidepart mental committee on at least six occasions , discussing their complaints and suggestions , including employees' objections to the initial change from the traditional swing shift schedule 4 The antiunion petition, Pinto s involvement In the meantime, on the shop floor, perhaps starting as early as December 12 (but, I find no earlier), a petition bearing a December 12 date began to be circulated among Respondents unit employees It contained Re spondent s stamped business logo at the top, along with the typed legend To The National Labor Relations Board We, the employees of Bay Area Mack Sales and Service, do not want to be represented by any local union There is no allegation nor direct evidence that Re spondent s agents inspired the initial preparation of the petition, as opposed to coaxing it along at later points The record indirectly suggests that the petition, at least in its initial stages, was the product mainly of the efforts of one John Wilder its first signer, who did not testify, and who I will assume for all purposes below was a non supervisory unit employee 15 It seems from all indica tions that the petition had not been prepared much less put into circulation, at any time before Respondent re ceived the Unions' first demand letter on December 11 The petitions facial date of December 12 is enough to deflate any such suggestion 16 There is much evidence, related below, that the petition was still in circulation until on or shortly before January 22, when the original petition, by then containing 18 undated unit employees signatures (a unit majority as of January 22), was deliv ered by one of the employee solicitors to the Regional Office Mowers and Pinto each state they had been made aware by a point around mid December (they say only vaguely so) that the antiunion petition had begun circu lating in the plant Mowers stated he did not see the pets tion itself until late January when Pinto showed him the copy Pinto had received Pinto stated that he did not see the petition until he found it on his desk in late Jan uary' after being told by Tom Meda, whose signature appears second on the petition that Meda had left Pinto a copy and had taken the original to the Board s Of fices 17 15 The record will not prove or disprove that Wilder possessed super visory duties and powers as that term is defined in Sec 2 (11) of the Act Even his job title is in dispute thus in testimony Mowers referred to Wilder as a working foreman in the Parts Department by contrast employee Fern called Wilder the Parts Manager I note also that Wilder worked under an acknowledged supervisor Service Manager Jim Morrison 16 Although some witnesses vaguely recalled at times that the petition was in circulation in early December their more deliberate recollec tions are consistent with the inference suggested by the December 12 date appearing on its face that the petition surfaced no earlier than that date 17 I thus infer that the late January date referred to by Mowers and Pinto was on or about January 22 the date the parties stipulated that the original was lodged in the Board s Regional Office 130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD It was not until January 26, in a letter to the Regional Office replying to the Unions' instant charge, filed Janu- ary 5, that Mowers first invoked the petition as a basis for dismissing "the charge filed by the Union [sic]." And, prior to January 22, Mowers admittedly had not relied on any intervening "rumors" about the circulation of the petition as a basis for doubting the Unions' majority sup- port. He admitted that his only basis for having already refused the Unions' earlier demands was his belief that they had waived all demanded rights when Machinists had signed the termination agreement with MTI. t s The General Counsel called two witnesses, signers of the petition, Michael Ferri and James Lightfoot, to testi- fy about certain conversations with Pinto concerning the progress of the petition. (No other employee-witnesses were called by either party.) Before Ferri and Lightfoot testified, the General Counsel had also called Pinto as an adverse witness, but did not question him concerning the substance of the conversations about which Ferri and Lightfoot later testified. Respondent did not recall Pinto during its own presentation and, accordingly, Pinto has never been asked to admit or deny the specifics of Ferri's and Lightfoot's accounts. In his limited testimony during the General Counsel's case-in-chief, Pinto displayed an unimpressive demeanor and a general vagueness and un- responsiveness. To the extent his testimony might indi- rectly be inharmonious with Ferri's and Lightfoot's' I would not resolve any such discrepancies in Pinto's favor. Because he did not specifically contradict either Ferri or Lightfoot about certain specific transactions, I rely on those witnesses for the following findings: Lightfoot eventually testified that he signed the peti- tion in the "week following . . . the second week in De- cember." His signature was then the fourth on the signa- ture list. Lightfoot states that he had first spoken with Pinto roughly a week earlier about the petition, that Pinto had approached him and informed him that "John Wilder would be bringing around the petition that he was making up to have the Union to stay out." t 9 Light- foot states he replied that he would "look at it" once he got it. Later, after Lightfoot had himself signed the peti- tion presented by Wilder, he retained it for some time and subsequently spoke with other employees in his de- partment about signing it, obtaining an uncertain number of additional signatures in the process. At some point thereafter, probably no later than around mid-January, Pinto again approached Lightfoot, this time to urge 18 I will not detail the plainly edited, inconclusive, and largely irrele- vant testimony of Pinto, given in response to adverse questioning by the General Counsel, in which Pinto recounted a number of conversations with various unit employees (many of them occurring only well after January 22) during which some of those employees may have indicated that they were content without union representation . If I credited it, Pinto's testimony would still fail to show that a majority of unit employ- ees-much less an uncoerced majority of them-had independently ex- pressed a wish not to be represented by the Unions. And it is at least equally important that Respondent did not, in any case, rely on any such pre-January 22 conversations as described by Pinto in refusing to recog- nize the Unions. See, e.g., Royal Vending Services, 275 NLRB 1222 fn. 1, third paragraph ( 1985). 19 During the General Counsel's adverse examination, Pinto denied ever having been told by Wilder that Wilder was circulating the petition. I find Pinto had somehow learned of this fact based on his admission to Lightfoot, apparently made within a few days after December 12. Lightfoot to get even more signatures. Lightfoot asked who had not yet signed from his department and Pinto named Ted Brooks. 2 ° Ferri recalled that he signed the petition (the fourth from last signature) "around the tail end of January, sometime around Super Bowl time" (by which time Brooks' signature already appeared on the petition). Ear- lier, however ("Probably about the middle of January," says Ferri), Pinto had approached him, beginning the conversation by saying, "Mike, if this conversation comes up farther down the line I will deny all aspects of every [sic] talking about it." Ferri recalled further, "At that point he asked me to talk to [sic] the men into sign- ing the petition that was going around," adding that "nothing would be done" to anyone who failed to sign the petition, but arguing that "if there was a union in- volvement here . . . people would have to go on strike and nobody likes to go on strike." Ferri agreed with the latter observation and the conversation closed. III. ANALYSIS AND CONCLUSIONS A. Alleged 8(a)(5) Violations I find it useful to begin my analysis by identifying those features of Respondent's status, its rights and obli- gations, in the period December 3-January 22, about which there can be no serious dispute as a matter of fact or law. In the 15 years between the Supreme Court's decisions in Burns and Fall River Dyeing, supra, it has become set- tled that when a new employer in a routine business takeover of a formerly union-represented business begins operations with a substantial and representative comple- ment of bargaining unit employees, a majority of whom had been similarly employed by the previous owner of the business, the new employer will be treated as the "successor" to certain of his predecessor's labor relations obligations. Most notably the successor will inherit the obligation, on demand, to recognize and bargain collec- tively in good faith with the representative of the prede- cessor's bargaining unit employees. Indeed, a rebuttable presumption attends such takeovers-that the historical representative continues to enjoy majority support among the unit employees in the successor operation and, accordingly, that the successor must honor a proper demand for bargaining unless it can then show a respon- sible objective basis for doubting in good faith that the 20 Lightfoot originally testified , consistent with his February 2 pretrial affidavit, that his second conversation with Pinto concerning the petition took place on the afternoon of January 22, at roughly the same time that the original specimen of the petition had been delivered to the Regional Office. The balance of his testimonial chronology makes it more probable that the second conversation occurred in the days preceding January 22. So, too, does the fact that Brooks' signature appears sixth to last on the petition. It is unlikely that as many as six more signatures could have been obtained between the point on January 22 when Lightfoot originally recalled he spoke with Pinto about Brooks and the almost simultaneous point when the petition in its ultimate form was deposited in the Regional Office. Also consistent with the probabilities as I thus find them is Ferri's account, discussed next. BAY AREA MACK historical representative enjoys majority support in the current bargaining unit 21 Applying those established principles to this case, it is clear that when Respondent began operations on Decem ber 3, employing such a representative complement most of whom were former MTI employees, Respondent s status as MTI s labor relations successor became perfect ed, its obligation, on proper demand, to bargain with the incumbent joint representative existed from that day onward Accordingly if the Unions December 11 demand was (as I find below) a proper one Respondent owed a duty to recognize and bargain with the Unions unless as of that date, Respondent possessed grounds for doubting in good faith that the Unions enjoyed majority support in the unit I find that Respondent did not then entertain any such doubts Indeed, Mowers disavowed any such claim, admitting instead that Respondents re fusals to honor the Unions demands in the period De cember 11-January 22 was grounded in the belief that the Unions had previously waived any claims to repre sent the unit Respondent could not rely on the antiunion petition, received in late January, to justify its earlier refusal promptly to have honored the Unions repeated de mands, first expressed on December 11 Any "objective considerations relied on by an employer to ground a good faith refusal to recognize an incumbent union must themselves arise in a context free of any unfair labor practices which might meaningfully tend to cause em ployees to become disaffected with the incumbent union See e g, Master Slack Corp, 271 NLRB 78, 84 (1984), Wilshire Foam Products, 282 NLRB 1137 (1987) A suc cessor employers refusal to honor a proper union recog nitional demand will be deemed, in itself an unlawful act which fatally taints a later antiunion petition from em ployees which might otherwise support a claim of good faith doubt about the union s majority status Western Davis Co, 236 NLRB 1224 1227 (1978), and cases cited see also, e g, First Food Ventures, 229 NLRB 1228 1230 fn 12 (1977), and case cited 22 The foregoing analyses adequately dispose of two of the three defenses urged by Respondent to the claim that it owed a duty to recognize and bargain collectively with the Unions on and after December 11 Respondent has not rebutted the presumption that the historical joint representative enjoyed majority support in the successor unit as of that date, its refusals to bargain do not trace from any untainted objective evidence of the historical representatives loss of majority support This leaves for discussion the last of Respondents defenses to the pre sumptive duty to bargain Respondents claim that the Unions demands were improper 21 E g Premium Foods v NLRB 709 F 2d 623 630 (9th Cir 1983) A successor employer may rebut the presumption and refuse to bargain with the previously recognized union only if he can show that the union in fact no longer represents a majority of the members of the bargaining unit or that he has a reasonable good faith doubt of majority support 22 Since this is so I do not discuss or decide whether Pinto s actions in connection with the petition drive (or other 8(a)(1) violations in this case) would independently taint the petition as a basis for doubting the Unions majority support 131 Respondent argues on brief that it had no duty to honor the Unions demands because to do so would nec essarily exclude Painters from the picture and thereby destroy the continuity of representation previously en joyed by employees in the bargaining unit This argu ment sounds hollow and fails to persuade for a number of reasons, not least of which is the fact that it was made rather late in the course of this controversy 23 At the time it refused the Unions demands for recognition and bargaining, Respondent was not concerned with whether the Unions were the same entity that had historically represented the employees of the dealership indeed, in its December 24 reply, Respondent relied solely on the mistaken belief that the October 8 termination agree ment, signed alone by Machinists operated as a forfeit ure of all future representational rights at the dealership by the Unions comprising the joint representative Under comparable circumstances, the Board has invoked the doctrine of estoppel to dispose of such claims See, e g , Argus Optics, 210 NLRB 923, 924 (1974) ( Having ac cepted the Local Union s authority to make such a re quest on behalf of the Union i e bargaining demand and believing its response to be to the proper union, Re Spondent is now estopped to assert that the Local Union had no authority to make such a request ) (citing Mutual Coal Co, 181 NLRB 564, 567 (1970)) Estoppel aside, there can be no question on this record that the Unions who demanded joint recognition by and bargaining with Respondent are the only unions who have ever served in fact as the day to day bargaining agency for the unit employees Accordingly, if Respond ent had honored the Unions demands this would not have disturbed the historically recognized pattern of rep resentation of the dealerships employees As Respondent has noted quoting Yates Industries, 264 NLRB 1237 1250 (1982) In considering the issue of continuity of representation, the Board is primarily concerned with the question of whether there is essentially the same bargain ing representative And the Supreme Court confirmed in NLRB v Financial Institution Employees 475 U S 192, (1986) that the reorganizations and realignments of an established bargaining representative will not excuse an employers refusal to bargain with that representative where the requisite continuity of representation is not disturbed by the organizational changes 24 I do not understand, much less accept Respondent s reliance on those cases for the proposition that the Unions demands could not have been honored without destroying representational continuity If as we all agree 23 It was not until the trial opened that Respondent formally moved to amend its answer to include this and other affirmative defenses although Respondents intent to invoke these defenses had been announced in a conference among the parties and the bench several days earlier It is not clear precisely when Respondents counsel may have first uttered the continuity of representation defense to other parties here What seems clear however is that the defense did not surface until well after Re spondent for other reasons had already refused to bargain and had caused the Unions to file the instant charges 24 Indeed the Court found in that case that the Board had exceeded its statutory authority by not applying that rule in a union affiliation case where the Board otherwise conceded that continuity of representation had not been so disturbed by the affiliation as to create a question con cerning representation Ibid 132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD essentially the same bargaining representative is the standard by which to judge the propriety of the Unions demands then there need be little concern because the record unmistakably shows that the Unions making the demands were the only entities in the nominally triparte joint representation arrangement who actually negotiated for and administered the contracts covering the employ ees of MTI, indeed the only Unions in which those em ployees had become members Plainly, it would discard substance in favor of form to rely alone on a contractual anachronism-the appearance of Painters names and sig natures on recent contracts-to maintain that the Unions were not essentially the same bargaining representative ' as the one that had historically spoken for the Mack dealership bargaining unit The identity of the Unions as the actual bargaining agents for the unit simply has not changed accordingly, the absence of Painters from the demands for bargaining did not excuse Respondents re fusals to honor them Having found that Respondent meets all prima facie tests for labor relations successorship and has not pre sented valid defenses to its admitted refusals, since De cember 11, to recognize and bargain with the Unions, I sustain the complaint insofar as it alleges that Respond ent has violated Section 8(a)(5) of the Act 25 B Alleged 8(a)(1) Violations 1 Nonunion statements in November job interviews The complaint orally amended at trial avers that Re spondent unlawfully told employee applicants at a time when the Unions were the proper representative of the employees, that it would be a nonunion company Factually the General Counsel relies on Mowers admis sions (at trial and in a pretrial affidavit) that Mowers and Pinto wrongly believing that MTI s termination agree ment relieved Respondent of all future labor relations obligations with the Unions, stated during the November employment interviews with MTI employees that Re spondent intended to start up as a nonunion company Although the facts relied on by the General Counsel are clear enough it is less easy to identify from his some what unfocused arguments on brief the precise legal theory or theories on which he would finally rely to sup port this count in the complaint It is less easy still to credit the theory which seems embedded in the language he chose when he added this count to the complaint The General Counsel emphasized in amending the com plaint that Respondents nonunion statements were made at a time when the Unions were the proper repre sentative of the employees As I discuss below, howev er, the quoted assertion is not supportable on this record if it implies that Respondent owed a bargaining duty toward the Unions in November And if the quoted state ment is intended merely to assert that the Unions were in November, the proper representatives of the employ 21 I include here the separate actions challenged by the complaint as discrete 8(a)(5) violations to wit Respondents having unilaterally changed the swing shift schedule and its having formed and dealt directly with an employee grievance committee without the prior notice to the Unions required by the second proviso to Sec 9(a) of the Act ees in their employment relationship with MTI then the statement is true only in an irrelevant or trivial sense which I shall not consider further Finally to the extent the General Counsel argues that Respondents statements coercively implied a kind of anticipatory refusal to honor some duty to bargain that might lawfully attach at a later point I think the facts cannot reasonably fit the argument We must recall the surrounding factual and legal con text in which the allegedly offending statements were made The statements were made in interviews with ap plicants during which Respondent discussed the initial terms and conditions of employment that it intended to impose Its general right to impose such initial terms is not challenged by the complaint and was, indeed ex pressly conceded by the General Counsel Under Burns the only way that Respondent could have owed a duty to bargain with the Unions before announcing initial terms and conditions of employment to employee appli cants would have been if it were then perfectly clear that MTI s employees would become a bargaining unit majority in the new operation Id, 406 U S at 294-295 Because the General Counsel concedes Respondent s right to have imposed such initial terms, I must necessar ily presume for purposes of this decision that it was not perfectly clear when these interviews were being con ducted that Respondent would become a successor to MTI s labor relationship with the Unions Accordingly the narrow legal question presented is whether a potential successor to a business, one whose status as a labor relations successor is not yet perfected violates Section 8(a)(1) by telling employee applicants that he intends to start up as a nonunion company This question was highlighted during colloquy at trial but the parties posttrial arguments and citations to au thority do not adequately face up to it My own research discloses no authority that plainly speaks to the question, but it casts doubt on the General Counsels position It is clear enough in the Board s holdings that an em ployer already under a bargaining obligation violates Section 8(a)(1) by telling represented employees he in tends to operate nonunion The General Counsel cites a representative case Antonino s Restaurant 246 NLRB 833 837 (1970) See also e g Karsh s Bakery 273 NLRB 1131 (1984) Cascade Painting Co 277 NLRB 926 fn 3 (1985) Those cases are not particularly instructive, how ever because unlike them, this case involves a Respond ent who was not bound to a bargaining relationship when the employer announced `nonunion intentions I note also, without finding it dispositive, that the Board has refrained from treating such nonunion statements themselves as violations of Section 8(a)(1) when made by an employer with no existing union obligations even when made as part of a process in which employers had issued unlawful instructions to applicants that they must obtain union withdrawal cards as a condition of employ ment See Schmidhn Plumbing 284 NLRB 1506 (1987) Bridgeway Oldsmobile 281 NLRB 1246 (1986) On brief the General Counsel characterizes Respond ent s statements as ones that (my emphasis) were rea sonably calculated to announce to prospective employees BAY AREA MACK that Respondent intended to operate in a union free envi ronment and that any continued support of the Unions or desire for continued representation on their part would be futile Certainly, there is no dearth of Board cases finding 8(a)(1) violations when an employer directly or indirectly tells employees that he will go so far as to vio late statutory obligations to become or remain a non union operation But when an employer with no present bargaining obligation simply states to applicants that the employing operation will be nonunion, this does not necessarily imply an intention to violate the law Rather it may only imply the employers intention not to volun tarily confer recognition on a bargaining agent until such time as the law may require such recognition At worst, the statement may be ambiguous on the point thereby requiring reference to the surrounding context to deter mine whether it amounts to an anticipatory threat Here, I find nothing in the context to suggest that Re spondent ` calculatedly sought to impress on applicants that it would refuse any bargaining obligation which might properly mature in the future It is true, of course, that Respondent's agents believed , wrongly, that the Unions had waived any future representational claims But it was not perfectly clear in November that Re spondent would , on starting operations, employ a unit complement consisting of a majority from the predeces sor operation Accordingly, Respondent cannot be charged with knowledge in November that it would become a labor relations successor as soon as it were to begin operations Necessarily, the employees being inter viewed in November could not know either that the eventual employment shakeout would make Respondent a labor relations successor I therefore do not believe that the employee applicants would reasonably infer from Respondents `nonunion remarks that Respondent was prepared to violate any future bargaining obligations that might anse And given Mowers credited testimony that he also emphasized to employees that he was then speaking about Respondent 's start up intentions and that it would be up to the employees themselves whether Respondent would remain nonunion it is doubly im probable that employees would draw such an inference In context, the worst that might be said about such re marks is that they were poorly founded and incomplete insofar as they purported to explain the circumstances under which Respondent might incur a future bargaining obligation Thus under Burns it would doubtless have been more accurate as a matter of law to say that Re spondent would be privileged to start up as a nonunion company" only in the sense it enjoyed the right to set initial terms but that it would inherit an obligation to recognize and bargain with the Unions if enough of MTI's employees accepted employment on the new terms to constitute a majority in the new operation But this kind of analysis is a far cry from any arguments made by the General Counsel to date and I am aware of no holdings by the Board which would support an 8(a)(1) violation merely because the employer in stating a nonunion" intention failed to catalog the legal cir cumstances under which it might later incur a union obligation In the absence of any compelling argument or authority to support it, I would not find that Respond 133 ent s nonunion remarks in November had any tenden cy to interfere with restrain, or coerce employees in the exercise of Section 7 rights 2 Posting demand correspondence in the shop in December The amended complaint alleges as a violation of Sec tion 8(a)(1) that On various dates in December 1986 Respondent posted letters at its facility in which it refused to recognize or bargain with the unions at a time when the unions were the collective bargaining repre sentative of the unit employees I find merit to this count As I have earlier concluded Respondents duty to recognize and bargain on request with the Unions became established on December 3 when it started oper ations with a unit complement consisting in the main of former MTI unit employees When, on December 11, it received the first of the Unions demands, it owed a duty to respond affirmatively , not to stall or equivocate By posting its negative replies to the Unions demands in employee work areas, Respondent effectively commune cated to employees that it would not recognize or bar gain with the Unions at a time when it was legally com pelled to do so Consistent with cases discussed in the preceding section, I conclude that such a message inher ently coerced employees in the exercise of protected rights and thereby violated Section 8(a)(1) 3 Pinto s involvement in the employee petition The complaint alleges that in December 1986 and January 1987 Pinto solicited employees to sign a peti tion to revoke the Unions bargaining authority The facts as found above substantially bear out the complaint On two occasions , Pinto directly confronted employees and asked them to redouble efforts to get other employ ees to sign the petition, implying in each case that he was monitoring the petitions progress In one case (Lightfoot) he suggested the name of an employee who should be talked to in another case (Ferri) Pinto spiced his request with statements strongly implying that the Unions presence would inevitably compel a strike In the latter case, moreover, Pinto s solicitation was accom paneed by deniability statements communicating his own awareness that he was improperly insinuating him self into the petition process In Eastern States Optical Co , 275 NLRB 371 372 (1985), the Board recently discussed its approach to legal questions surrounding an employers involvement in an antiunion petition The Board stated in summary it is unlawful for an employer to initiate a decertification pe tition, solicit signatures for the petition, or lend more than minimal support and approval to the securing of signatures and the filing of the petition As I have noted previously there is not enough evidence to find that Re spondent initiated the petition , but there is adequate evidence that Pinto solicited two employees (Lightfoot and Ferri) in middle or late January to find further sign ers for the petition Pinto s solicitations in that regard are plainly distinguishable from the employer actions ana 134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lyzed by the Board in Eastern States Optical supra 26 By conveying the impression that he was monitoring the pe tition s course Pinto put the employees who were tar gets of his solicitations in the position of risking his dis pleasure if they did not follow through on his requests for more signatures 27 In short, when he buttonholed employees Lightfoot and Ferri with requests in January that they seek out further signers, Pinto crossed the line which separates lawful support and approval from un lawful actions that would tend to coerce employees in their right to refrain from involvement in the petition campaign Respondent thereby violated Section 8( a)(1), substantially as alleged in the complaint 28 THE REMEDY Having found that Respondent engaged in unfair labor practices violating Section 8(a)(5) and (1) I have pre pared a recommended order directing Respondent to cease and desist therefrom and to take certain affirmative action to restore the status quo ante the violations, which commenced on or about December 11 when Respondent received and refused to honor the first of the Unions de mands for recognition and bargaining 29 The General Counsel also seeks in the order a visita tonal provision which would enable the Board at the compliance stage to pursue Federal rules for discovery under the supervision of the United States court of ap peals enforcing the order In support, the General Coun sel has appended a canned brief containing familiar gen eralized arguments In the roughly 2 years since the General Counsel first began filing such bnefs and rou tinely seeking entry of such discovery clauses in all unfair labor practice cases,30 the Board has repeatedly 26 In Eastern States the Board characterized the employers actions as merely allowing -as opposed to soliciting -a would be signer to sign a copy of the petition which was already in the employers hands The Board found it significant moreover unlike the timing here that this al lowing had been done at a time when the employer had already acted to withdraw recognition from the Union based on the petition 275 NLRB at 372-373 27 See Erickson s Sentry of Bend 273 NLRB 63 (1984) in which the Board found unlawful solicitations when employer agents summoned certain employees to a management office to respond to any questions the employees might have about a union resignation petition then being circulated implied that they were monitoring who had or had not signed it and thus created a situation where employees would tend to feel peril in refraining from signing the petition Id at 64-65 28 Because it would not affect the scope of the order or remedy I do not decide whether Pinto crossed this line in his first contact with Light foot in December in which he merely advised Lightfoot that Wilder would be bringing the petition around the shop for signatures 29 Although my proposed order contemplates that Respondent must rescind any unilateral changes made since December 11 if the Unions demand such rescission nothing in the order is to be construed to operate to deprive bargaining unit employees of any benefits already conferred as a consequence of any unilateral changes made by Respondent on or after December I I See e g Bellingham Frozen Foods 237 NLRB 1450 1467 fn 30 (1978) enfd 626 F 2d 674 (9th Cir 1980) cert denied 449 U S 1125 (1980) Stewart Granite Enterprises 255 NLRB 569 576 (1981) 30 As a matter of announced policy the General Counsel seeks such orders as a matter of routine As nearly as I can decipher from previous briefings on that subject from the General Counsels office this policy stems mainly from the Board s experience before the First Circuit in NLRB v Stemerfilm 702 F 2d 14 (1st Cir 1983) in which the circuit court panel rebuffed the Board s attempt to obtain pre contempt dis covery in the absence of an underlying decree providing therefor In so holding however the court suggested that all agencies are free to insert rejected such requests typically finding a visitatorial clause unnecessary or unwarranted in the circum stances '31 The Board s quite abbreviated comments on the visita tonal issue to date provide no real guidance for deciding when and why such orders ought to be entered or not entered What seems by now clear, however, is that the Board is unwilling to give blanket approval, as the Gen eral Counsel would have it do to the routine inclusion of visitatorial provisions in its orders Here the General Counsel does not seek a make whole order (cf Hilton Inn North supra) and has not intelligibly argued in its canned brief why this case involves any extraordinary circumstances warranting a visitatorial provision Ac cordingly, I will not recommend such a provision Taylor Bus Service 284 NLRB 530 (1987) On these findings of fact and conclusions of law and on the entire record, I issue the following recommend ed32 ORDER The Respondent, Transportation Equipment Services, Inc d/b/a Bay Area Mack, Oakland, California, its offi cers agents, successors, and assigns, shall 1 Cease and desist from (a) Refusing to recognize or bargain collectively in good faith with the Unions as the exclusive joint collec tive bargaining agent for all its employees working in classifications that were historically covered by labor agreements governing the operations of its predecessor, Mack Trucks, Inc (b) Refusing to notify the Unions and at their request, to bargain collectively with them before taking actions to change the wages, hours of work or other terms and conditions of employment of the unit employees from the status quo ante December 11 1986 (c) Dealing directly with unit employees or with com mittees of such employees for the purpose of adjusting grievances without giving the Unions notice thereof and an opportunity to be present at such adjustments (d) Telling its employees that it will not recognize or bargain collectively with the Unions (e) Soliciting employees to obtain other employees' signatures on antiunion petitions (f) In any like or related manner interfering with re straining, 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 effectuate the policies of the Act visitonal clauses in decrees (id at 17) thus providing the apparent cata lyst for the General Counsels current practice 31 E g Briggs Plumbingware 286 NLRB 1189 (1987) Logo 7 Inc 284 NLRB 204 (1987) But compare Hilton Inn North 279 NLRB 45 fn 3 (1986) which in the Board said We agree that a visitatonal clause is appropriate based on the possible complexity of computing the make whole remedy here and on all the facts of this case 32 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended 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 put poses BAY AREA MACK (a) Confer recognition on the Unions as the exclusive joint collective bargaining agent for its unit employees (b) Retroactive to December 11 1986 bargain collec tively in good faith with the Unions as with respect to the wages hours of work, and other terms or conditions of employment of its unit employees (c) On the Unions demand rescind any changes im plemented since December 11, 1986, affecting the unit employees wages hours, or other terms and conditions of employment (d) As soon as the Regional Director for Region 32 furnishes copies of it sign and post the attached notice 135 marked Appendix 33 for 60 consecutive days in con spicuous places at its dealership, including all places where notices to employees are customarily posted and take reasonable steps to ensure that the notices are not altered, defaced nor covered by any other material (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply ss 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 Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board