Burlingame Saab

BURLINGAME SAAB KJB Development Corporation d/b/a Burlingame Saab and International Association of Machin- ists and Aerospace Workers, AFL-CIO, Dis- trict Lodge 190, Local Lodge 1414. Case 20- CA-22089 August 23, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS HIGGINS AND DEVANEY On February 22, 1989, Administrative Law Judge Jerold H. Shapiro issued the attached deci- sion. The Charging Party filed exceptions and a supporting brief, and the Respondent filed an an- swering brief. 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, findings,' and conclusions2 and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. i The Charging Party has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administra- tive 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 re- versing the findings 2 The judge found, and we agree that the Respondent did not violate Sec. 8(a)(5) of the Act by refusing to recognize and bargain with the Union after June 30, 1988. In its defense, the Respondent relied on a peti- tion signed by a majority of its bargaining unit employees which stated that the employees "no longer grant exclusive representation to [the Union] ...:. The Charging Party argues, inter alia, that the petition was tainted by the Respondent's announcement , before the circulation of the petition, of unilateral changes in the employees ' terms and conditions of employment . We agree with the judge that the issue of petition taint based on alleged unlawful unilateral changes was not fully and fairly liti- gated Assuming arguendo that this issue was fully and fairly litigated, we find insufficient evidence to establish that the Respondent , on acquiring its predecessor's facility, acted unlawfully in unilaterally setting the em- ployees' initial terms and conditions of employment See Burns Security Services, 406 U S 272, 294-95 (1972), Fremont Ford, 289 NLRB 1290, 1295 (1988); Holiday Inn of Victorwlle, 284 NLRB 916 (1987), Spruce Up Corp, 209 NLRB 194, 195 (1974), enfd. per curiam 529 F.2d 516 (4th Cir. 1975). Christine A. Rails, for the General Counsel. Robert G. Hulteng and Joseph P. Ryan (Littler, Mendelson, Fastiff & Tichy), for the Respondent. David A. Rosenfeld (Van Bourg, Weinberg, Roger & Ro- senfeld), for the Charging Party. DECISION STATEMENT OF THE CASE 227 JERROLD H. SHAPIRO, Administrative Law Judge. This proceeding in which I conducted a hearing on No- vember 14, 1988,1 is based on an unfair labor practice charge filed on July 18 by International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge 190, Local Lodge 1414 (Union), and upon a com- plaint issued September 1 by the Regional Director for Region 32 of the National Labor Relations Board (Board), on behalf of the Board's General Counsel, alleg- ing that KJB Development Corporation d/b/a Burlin- game Saab (Respondent) violated Section 8(a)(1) and (5) of the National Labor Relations Act (Act). The complaint alleges that on June 20 Respondent purchased and began operating a business formerly owned and operated by another employer and that as a successor employer to the former employer, Respondent was obligated to recognize and bargain with the Union as the exclusive bargaining agent of Respondent's em- ployees in an appropriate unit, and further alleges that since June 30, in violation of Section 8(a)(5) and (1) of the Act, Respondent has failed and refused to recognize and bargain with the Union as the unit employees' col- lective-bargaining representative. The complaint also al- leges that Respondent violated Section 8(a)(1) of the Act between June 15 and July 1, when its service manager, Ron Allee, told employees they would have to leave the Union by July 1 and solicited employees' resignations from the Union.2 It further alleges Respondent violated Section 8(a)(1) of the Act when its owner and general manager, Bruce Qvale, allegedly engaged in the follow- ing conduct: On or about June 2 interrogated employees about their union membership, activities, and sympathies and solicited them to withdraw from union membership; On about June 2 told employees Respondent intended to make the business nonunion; On about June 9 told em- ployees Respondent would be nonunion and would not sign a contract with the Union.3 On about June 17 and in mid-July told employees Respondent would not sign a contract with the Union. Respondent filed a timely answer denying the commission of the alleged unfair labor practices.4 i All dates hereinafter refer to the year 1988 , unless stated otherwise 2 Par. 7(f) of the complaint alleges in substance that on several occa- sions between June 15 and July 1 , Allee interrogated employees about their union membership and sympathies In her posthearing brief counsel for the General Counsel moved to amend this paragraph to instead allege that on or about June 15 to July 1, Allee solicited employees' resignations from the Union General Counsel's motion is granted. 9 Par. 7(c) of the complaint alleges in substance that on or about June 9 Respondent gave employees the impression it would be futile for them to support the Union when Qvale told them Respondent would be nonunion and would not recognize the Union In her posthearing brief counsel for the General Counsel moved to amend this paragraph to instead allege that on or about June 9 Respondent gave employees the impression it would be futile for them to support the Union when Qvale told them Re- spondent would be nonunion and would not sign a contract with the Union. General Counsel's motion is granted 4 In its answer Respondent admits that its business involved in this case meets the Board's applicable discretionary jurisdictional standard and that Respondent is an employer engaged in commerce within the meaning of Continued 296 NLRB No. 31 228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On the entire record, from my observation of the de- meanor of the witnesses, and having considered the par- ties' posthearing briefs, I make the following5 FINDINGS OF FACT I. THE ALLEGED UNFAIR LABOR PRACTICES A. The Evidence 1. The setting On June 20 Respondent purchased an automobile deal- ership located in San Mateo , California, owned and oper- ated by a company doing business as Cole European (Cole European), and on the same day commenced to operate the dealership and do business as Burlingame Saab. Previously, in May, Respondent's vice president, Bruce Qvale, signed a letter of intent to purchase the dealership. During the period Cole European owned and operated the dealership, its mechanics and service writers were represented by the Union and when the dealership was sold to Respondent they were covered by a collective- bargaining agreement between Cole European and the Union effective June 16, 1986, through July 15, 1989. Another labor organization, Teamsters Local No. 665 represented Cole European's parts department employ- ees. Immediately before it stopped doing business on June 20, Cole European employed approximately seven or eight mechanics and one service writer. On June 20, when Respondent purchased and commenced operating the dealership as Burlingame Saab, Respondent em- ployed four mechanics (Ron Parola, Russell McKay, John Smith, and Ed Clark) and one service writer, Wil- liam Madamba. These employees had been employed by Cole European in the same positions. The complaint al- leges, Respondent admits, and I find that when Respond- ent purchased the dealership from Cole European on June 20 and when it commenced to operate the dealer- ship as Burlingame Saab on that date, Respondent was a successor employer to the predecessor employer within the meaning of Section 8(a)(5) of the Act, and as a suc- cessor employer was obligated to recognize and bargain with the Union as the exclusive collective-bargaining representative of Respondent 's mechanics and service writer. Bruce Qvale, Respondent's vice president, is the gener- al manager of Burlingame Saab . The service writer and mechanics employed by Burlingame Saab are supervised by Ronald Allee, its service manager. Allee occupied the same position with the predecessor employer, Cole Euro- pean. The complaint alleges and Respondent's answer to the complaint admits that at all times material Qvale and Allee were supervisors of Respondent within the mean- ing of Section 2(11) of the Act and agents of Respondent within the meaning of Section 2(13) of the Act. Sec 2(6) and (7) of the Act Also, in its answer, Respondent admits that the Union is a labor organization within the meaning of Sec 2(5) of the Act. 8 Respondent 's motion to strike portions of the Charging Party 's post- hearing brief is denied. Bruce Qvale is also vice president and general manag- er of another motor vehicle dealership , British Motor Car Distributors, LTD, located in San Francisco, Cali- fornia. The service department employees employed by that dealership are represented by Machinists Union Local No. 1305, but as of the date of the hearing in this case were not covered by a collective-bargaining agree- ment because British Motor Car Distributors and Ma- chinists Union Local No. 1305 were still in the process of negotiating an agreement to replace the one which had expired 4 or 5 years previously. The parts depart- ment employees employed by British Motor Car Distrib- utors were at one time represented by Teamsters Union Local No. 665, but early in 1988 , in a Board-conducted election, they voted to decertify that union as their col- lective-bargaining representative. 2. Qvale's meeting with the mechanics In June, several days prior to Respondent's purchase of the dealership from Cole European, Respondent's vice president and general manager, Qvale, held a meeting at the dealership with all of Cole European's mechanics, at which time representatives from an insurance company explained to them the health , welfare and pension pro- grams which Respondent intended to implement when it took over the business . Immediately following this pres- entation, Qvale spoke to the mechanics about Respond- ent's plans for the dealership and answered questions. General Counsel contends that, in response to an em- ployee's question about the Union , Qvale declared Re- spondent would negotiate with the Union, but would not sign a contract with the Union . The evidence pertinent to an evaluation of this contention is set forth below. Ronald Parola, a witness called by the General Coun- sel, was one of the Cole European mechanics hired by Respondent, but was no longer employed by Respondent when he testified, having quit the working day before the hearing. He testified that at this meeting, John Smith, one of the mechanics, asked Qvale if the employees would still be in the Union and the dealership remain a union shop when Respondent operated it. Parola at first testified Qvale answered by stating, "I will not sign a Union contract but I will negotiate ." Later, during cross- examination, Parola testified that when Qvale responded he would not sign a contract, he worded his response in terms of not signing the existing contract between the Union and Cole European. Although Parola shortly thereafter repudiated this testimony , he ultimately reluc- tantly conceded he was not sure whether Qvale stated he would not sign "the" rather than "a" union contract. John Smith, a witness called by the General Counsel, was one of the Cole Europeans mechanics hired by Re- spondent and, when he testified , was still employed by Respondent . He testified that other than introducing the employees to the insurance company's representatives, that Qvale during the meeting said nothing else to the employees. But, in an August 10 affidavit submitted to the Board during the investigatory stage of this case, Smith described several things that Qvale said to the me- chanics at the meeting and specifically stated in the affi- BURLINGAME SAAB davit that Qvale made no reference to the Union during the meeting. Robin Riedel, a witness called by the General Counsel, was one of the Cole European mechanics whom Re- spondent did not hire . During direct examination Riedel testified that at the meeting one of the mechanics, whose name he did not remember, asked Qvale if Respondent intended to have a union contract and that Qvale replied by stating, he would negotiate but was not going to sign "a contract" with the Union . Riedel further testified that when Qvale said this, he explained to the mechanics that it would not matter if they wanted a union contract, that Respondent would not have "a Union contract," that he would not sign one, and also mentioned that his San Francisco dealership's employees had left the Union. Riedel also testified that Qvale said other things about the Union and further explained to the mechanics why he would not sign a contract with the Union . During cross-examination, however, Riedel substantially modi- fied his aforesaid testimony; he testified Qvale did not simply state he would not sign "a" union contract, but that Qvale explained to the mechanics that the union contract he would not sign was the contract currently in effect between the Union and Cole European. Russell McKay, a witness called by the General Coun- sel, was one of the Cole European mechanics hired by Respondent and, when he testified , was still employed by Respondent. Contrary to all the other witnesses , he testi- fied Qvale's meeting with the mechanics occurred 3 or 4 days after Respondent's June 20 purchase of the dealer- ship, rather than several days prior to the purchase. On direct examination he also testified Qvale said nothing about the Union to the mechanics who attended the meeting . At this point the General Counsel , to refresh McKay's memory, showed him the portion of his August 25 affidavit, an affidavit submitted to the Board 's Gener- al Counsel during the investigation of this case , in which McKay stated that during this meeting either mechanic Parola or mechanic Smith asked if Qvale intended "to honor the Union as the bargaining agent," and that Qvale answered by stating, "no, you can stay in the Union if you choose to but I am not going to recognize the Union as the bargaining agent." After reading this portion of his affidavit, McKay testified Qvale stated it would be fine with him if the mechanics chose to remain in the Union and also stated that if employees wanted to stay in the Union because of union benefits , that Qvale would recognize the Union . At this point McKay was in- structed to reread the above portion of his affidavit, which he did, and after rereading it, testified , "I can't quote [Qvale] as [to] that, but to my recollection that might have been said." During cross-examination McKay testified that either Parola or Smith asked Qvale whether he would be hon- oring the union contract, or words to that effect, and Qvale replied , "he would not honor the contract" and also stated the employees could remain in the Union if they chose to do so. Subsequently, as a witness called by the Union, McKay testified that during this meeting Qvale told the mechanics he would not recognize the Union. Then when cross-examined, testified he did not recall whether 229 Qvale stated he would not recognize the Union, but testi- fied he assumed Qvale was referring to the union con- tract when he spoke to the employees . I asked McKay to explain this testimony and, in response, he further testi- fied: "I will go by what I stated in the affidavit, in re- gards to I assume he was referring to the contract." Lastly, when asked by Respondent's counsel to state his best recollection as to what Qvale stated at the meeting about the contract, McKay testified : Qvale stated, "he would not recognize the Union . And I was assuming he was referring to the contract because he stated that the people could stay in the Union if they so choose." Edward Clark, a witness called by Respondent, was one of the Cole European mechanics hired by Respond- ent and, when he testified, was still employed by Re- spondent. During direct examination he testified that em- ployees who attended the meeting asked Qvale whether or not they were to remain in the Union, and Qvale an- swered by stating, if the employees wanted to be or not to be in the Union, it was for the employees to decide. He further testified Qvale did not state he would not ne- gotiate with the Union or not sign a union contract, but told the employees he would not completely ignore the Union and would not say no to a meeting with the Union. During cross-examination Clark admitted the only thing he could remember about the Union that Qvale stated at this meeting was Qvale's statement that if the employees wanted to be union members it was en- tirely up to them. Bruce Qvale, Respondent's witness, testified that during this meeting one of the mechanics asked about "the status of the Union situation here," and Qvale replied by stating, that when Respondent took over the operation of the dealership it was starting without a union contract and that he did not intend to assume the current contract between the Union and Cole European , but would nego- tiate or bargain with the Union. Qvale denied saying he would not sign a union contract or saying he would not recognize the Union. 3. Qvale speaks to Parola shortly after Qvale's meeting with the mechanics Ronald Parola, one of the Cole European mechanics retained by Respondent, testified for the General Coun- sel that a few days after Qvale spoke to the mechanics as a group, as described supra, that Parola asked him, .,were we or were we not going to be in the Union." Parola testified Qvale replied by stating, "virtually the same thing he said in the insurance meeting , that he would not sign the contract." Qvale was not questioned about this conversation. 4. Qvale meets with the service writer and the parts department employees William Madamba, a witness for the General Counsel, was employed as a service writer by Cole European and was one of the employees hired by Respondent. He was employed by Respondent when he testified. He testified that in June, several days before Respondent 's takeover of the dealership, Qvale met with him and parts depart- ment employees Dan Wing and Brian Lopez twice; once 230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD early in June and the second time approximately 1 week later, when representatives from an insurance company spoke to Madamba, Wing , and Lopez about Respond- ent's health and pension plans. Regarding the first meeting, Madamba testified that either Lopez or Wing asked Qvale whether, like the em- ployees employed at Qvale's San Francisco dealership, they would be working without a union contract, that Qvale replied by asking them if they would mind being employed in a nonunion shop , and that neither Ma- damba, Lopez, or Wing indicated they would mind. Regarding the second meeting, Madamba testified that at this meeting Qvale stated he had completed negotia- tions to purchase the dealership from Cole European and told the employees, "he was not going to be going by the Union contract that the dealership had been under before, which is the one that Robert Cole had negotiated with 1414." In an affidavit submitted to the Board's General Coun- sel on August 17, Madamba, with respect to the first above-described meeting, stated the following: Qvale asked Madamba, Wing, and Lopez if they had "any ob- jections to withdrawing from the union and working in a nonunion shop" and stated they answered by indicating they had no objections and further stated that Qvale ex- plained to them that he was "non-union" in San Francis- co and intended to make this shop "non-union" also. In his August 17 affidavit, with respect to Qvale's second meeting with Madamba, Wing, and Lopez, Ma- damba stated the following : Qvale told them the dealer- ship was changing hands and was "going non-union" and also told them that the employees' benefits would not be reduced and would be even better than in a union shop, because he thought the company's new benefit package was better than offered in the "union 's contract." In at- tributing those words to Qvale, Madamba's affidavit also states that those words were the essence of what Qvale said to the employees, as Madamba was unable to recall his exact words. When questioned about the above-described portions of his affidavit, Madamba testified he was not sure whether his aforesaid testimony and what he stated in his affidavit were accurate insofar as he had stated or testi- fied Qvale used the words "non-union." He testified Qvale might have used the phrase "not working under a contract," rather than "non-union" and testified that the aforesaid statements contained in his affidavit were only paraphrases of what Qvale stated . During cross-examina- tion, Madamba also testified that Qvale essentially told the employees that they were not going to be working under the same contract as they had been working under while employed by Cole European and testified that he (Madamba) equated this statement with the employees having to withdraw from the Union and working in a nonunion shop. He testified he could not remember whether Qvale ever used the words "non-union," but could only remember Qvale saying that the employees were not going to be working under Cole European's contract with the Union. He further testified that he as- sumed that, that meant they would be working in a non- union shop. Bruce Qvale testified he only met with Madamba and parts department employees Wing and Lopez on one oc- casion, which was in June, several days before Respond- ent on June 20 took over the operation of the dealership. He testified he spoke to them the same day that the in- surance representatives spoke to the mechanics, as de- scribed supra, and that he spoke to Madamba, Wing, and Lopez immediately after they too had been addressed by the insurance agents. Qvale testified that one of the employees asked him a question about the shop's union status which was similar to the question asked by a mechanic at Qvale's previous meeting that day with the mechanics. Qvale further testi- fied he answered the question at this meeting using the same words as at the mechanics ' meeting. As described supra, Qvale testified that during the mechanics' meeting he told the mechanics, in answer to an inquiry, that when Respondent took over the operation of the dealer- ship it was starting without a union contract, explained he did not intend to assume the current contract between the Union and Cole European, and stated he would ne- gotiate or bargain with the Union. Qvale also testified that during his meeting with Ma- damba, Wing, and Lopez, he was questioned about the union situation at his other dealership in San Francisco and that he replied by advising the employees that, that dealership was still negotiating with the Union which represented the service department employees and told them that the union which represented the parts depart- ment employees had been decertified by those employees a few months earlier. Qvale testified he did not question Madamba, Wing, and Lopez about the Union nor ask them if they would mind being nonunion nor tell them he was operating nonunion in San Francisco and intended to operate non- union at this dealership also. 5. Allee and Qvale speak with Parola about the Company's benefit programs Ronald Parola, one of the mechanics employed by Cole European who was retained by Respondent, testi- fied that immediately following Respondent's June 20 takeover of the dealership , that Service Manager Ronald Allee spoke to him about the Company's pension plan. He testified Allee told him, "the company could not pay into two pension plans . Therefore I could not be in the Union." During cross-examination Parola testified that when Allee told him the Company could not pay into two different pension plans, Parola understood this to mean that the Company could not pay into both the 401K pension plan being offered by the Company and into the Union's pension plan. Parola further testified that subsequent to the above conversation, a few days before July 1, Allee again spoke to him about the Company's pension plan . He testified that Allee, "again asked had I dropped out of the Union because we could not pay into two pension funds," but that he did not answer the question and simply shrugged. Parola later testified Allee did not question him, as he initially testified, but simply stated "because we can't pay into two pension plans, you have to be of the Union by BURLINGAME SAAB July 1st." On June 30 Parola went to the office of Penin- sula Auto Mechanics, Lodge 1414 and withdrew from union membership. Parola also testified that on July 1 General Manager Qvale spoke to him, in Allee's presence, and asked whether Parola had withdrawn from the Union, that Parola answered "yes," that Qvale asked "why," and that Parola told Qvale that Allee had told him to do so. According to Parola, when Qvale heard this, Qvale became "rather distraught" and raised his hand to his forehead and stated, "Oh, no, now we are in for a law- suit." John Smith, one of the mechanics employed by Cole European and retained by Respondent, as a witness for the Charging Party, testified that late in June , prior to his filling out the paperwork for the Respondent 's health, welfare, and pension plans, that Allee spoke to him about the matter. He testified Allee told him he needed to fill out the paperwork for the new pension and health plans and advised him, "You can't have both plans , both the Union one and the new company plan, so you'd better make up your mind what you want to do." Smith testi- fied this was all that was said about this subject. The record reveals that Smith , like Parola, withdrew from Lodge 1414 on June 30. Ronald Allee, Respondent's service manager, testified that between June 27 and June 30 he spoke briefly to all of the employees on an individual basis about the Com- pany's 401K pension plan. He testified he told them the same thing. More specifically, with respect to his conver- sation with Parola, he testified he told Parola that if he intended to sign up for the Company's benefit program, he would have to notify the Company's office manager and advised him that the Company wanted to start its 401K pension plan by July 1 and if Parola intended to sign up for the plan, he would have to let the Company's office manager know. Allee testified his above-described conversation with Parola was the only one he had with him concerning this subject matter and testified he did not speak to him a second time about the subject. Allee also testified he did not tell Parola he had to withdraw from, or could not be in, the Union nor did he ever ask Parola whether he had dropped out of, or withdrawn from, the Union. Bruce Qvale, Respondent's vice president and general manager, testified that between Respondent 's takeover of the dealership on June 20 and July 1, he spoke to Parola on one occasion about the paperwork which had to be filled out by Parola if he wanted to participate in the Company's 401K pension plan. Qvale testified he spoke to Parola alone, at Parola's work station, and asked whether he had completed the paperwork for the Com- pany's benefit plan, that Parola answered by stating he had completed the paperwork as instructed by Allee, and told Qvale that Allee had mentioned to him that he had to choose between the 401K plan and the Union plan and had explained to him that the Company was under a July 1 deadline insofar as instituting the 401K plan was concerned. Qvale further testified that during this con- versation Parola informed Qvale that when Allee had spoken to him about the paperwork for the Company's 401K plan, that Allee had asked him, "Have you with- 231 drawn from the Union, and if so, which plan do you wish to take?" Qvale further testified that upon hearing the last remark attributed by Parola to Allee, that Qvale went immediately to the office and specifically asked Allee if, in speaking to Parola about the Company's 401K pension plan, the conversation had involved the subject of Parola withdrawing from the Union. Allee, according to Qvale, denied telling Parola he had to withdraw from the Union to get into the 401K plan. Allee was not questioned concerning his above-de- scribed conversation with Qvale . However, he did cor- roborate Qvale's testimony that Allee was not present when Qvale spoke to Parola about the 401K pension plan. 6. Qvale's mid-July conversation with Smith John Smith, a witness called by the General Counsel, was one of the Cole European mechanics retained by Respondent and was still employed by Respondent when he testified . He testified that in mid-July, while at his workbench, he complained to Respondent's vice presi- dent and general manager, Qvale, that the employees had lost a $1 -an-hour pay raise by leaving the Union and that he did not think it was fair that he had a wait another year for a pay raise. Qvale, according to Smith's testimo- ny, answered by stating, "That's the way it's going to be right now. So do something next year ." Smith testified this ended the conversation. During the investigatory stage of this case, on August 10, Smith submitted an affidavit to the Board's investiga- tor which stated in pertinent part: While I was working at my bench on or about July 15, 1988 . . . I was talking to Bruce Qvale about the fact that the employees had lost the 1.00 per hour due to us under the union contract. . . . I stated to Qvale "that does not seem right that we have to wait another year to get a raise." Qvale then stated "that is the way it is." We talked about the raise. Bruce Qvale stated "you can stay in the union if you want but you won't get 1.00 wage in- crease and I won't sign a union contract ." Qvale might have just stated 'I won't sign a contract.' He meant a Union contract . I cannot recall if he specifi- cally used the term "union " but that is what he meant. The conversation then ended and Qvale left. After reading this portion of his affidavit , Smith testified he had nothing to add to his above -described testimony. In other words, there is a significant conflict between his testimony and the description contained in his affidavit concerning his mid -July conversation with Qvale. 7. Respondent's refusal to recognize and bargain with the Union As described supra, the mechanics and service writers employed by Cole European, the predecessor employer herein, were represented for purposes of collective bar- gaining by the Union-International Association of Ma- chinists and Aerospace Workers, AFL-CIO, District 232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Lodge 190, Local Lodge 1414-and their terms and con- ditions of employment were governed by a collective- bargaining agreement between the Union and Cole Euro- pean. Also, as I have found supra, when Respondent purchased the business from Cole European on June 20 and began to operate the business as Burlingame Saab on that same date, Respondent was a successor-employer to Cole European for purposes of the National Labor Rela- tions Act and as a successor-employer was obligated to recognize and bargain with the Union as the exclusive collective-bargaining representative of Respondent's me- chanics and service writers. On June 28 Union Business Representative Charles Nethery, using the stationery of Peninsula Auto Mechan- ics Lodge No. 1414, wrote Respondent that the Union represented a majority of the mechanics, service advisors/dispatchers, body and fender men, painters and apprentices employed by Respondent at Burlingame Saab and demanded that Respondent recognize the Union as the bargaining agent of those employees and requested a meeting for contract negotiations. On June 20, when Respondent began doing business as Burlingame Saab, and at all times material thereafter, Re- spondent employed only five employees in the bargain- ing unit represented by the Union: Mechanics Parola, McKay, Smith, and Clark, and service writer Madamba. On a date somewhere between June 23 and June 29 mechanic McKay gave Respondent's vice president/- general manager Qvale a petition signed by McKay, Clark, and Madamba. The petition which had been draft- ed and circulated by McKay, read as follows: As of 6-2-88 the undersigned no longer grant ex- clusive representation to Pennisula [sic] Automotive Machinists Lodge No. 1414 150 South Boulevard, San Mateo Ca. for all activities related to our em- ployment by Burlingame Saab, 825 North San Mateo Dr. San Mateo, Ca. On June 30, after having considered the aforesaid peti- tion, the Respondent, through its attorney, responded to Union Representative Nethery's June 28 request for rec- ognition and bargaining , by writing him a letter which, in pertinent part, stated: Burlingame Saab does not believe Machinists Lodge 1414 represents a majority of its employees in an ap- propriate unit. Burlingame Saab bases it belief on objective evidence received from its employees. For that reason, Burlingame Saab must decline your re- quest to recognize Machinists Lodge 1414, and must also decline your request for a meeting. B. Discussion and Conclusionary Findings 1. The alleged misconduct attributed to Qvale and Allee a. Qvale's meeting with the mechanics General Counsel contends that during his June meet- ing with the mechanics, Respondent's vice president and general manager, Bruce Qvale, told them he would ne- gotiate with the Union, but would not sign a contract. General Counsel argues that by telling the mechanics he would not sign a contract that Qvale violated Section 8(a)(1) of the Act. I am persuaded , for the reasons below, that this contention lacks merit. General Counsel relies upon mechanic Ronald Parola's testimony that during the June meeting with the mechan- ics that Qvale, in answering a mechanic 's question, stated "I will not sign a Union contract but I will negotiate." However, Qvale, whose testimonial demeanor was better than Parola's, denied making this statement. He testified that in response to a mechanic's inquiry , he informed the mechanics that when Respondent took over the oper- ation of the dealership, it was starting without a union contract, explained to them that he did not intend to assume the current collective -bargaining contract in ex- istence between Cole European and the Union and as- sured them he would negotiate or bargain with the Union. Parola was unable to unequivocally deny Qvale's testimony. Quite the opposite, at one point during cross- examination, he testified that Qvale's response to the me- chanic's question about the Union was worded in terms of not signing the existing collective-bargaining agree- ment between Cole European and the Union . Although Parola later repudiated this testimony, he ultimately re- luctantly conceded that he was unsure whether Qvale told the mechanics he would not sign "the" rather than "a" union contract. Also relevant in evaluating Parola's testimony is the failure of any one of the four mechanics, who testified about Qvale's June meeting with the mechanics, to cor- roborate Parola's testimony that Qvale told the mechan- ics he would not sign a union contract.6 Indeed, mechan- ic Riedel, a witness for the General Counsel , corroborat- ed Qvale's account of what occurred. Riedel testified that, in response to a mechanic's question about the Union, Qvale stated he would negotiate with the Union for a new collective-bargaining agreement, but explained to the mechanics that he would not sign the collective- bargaining agreement currently in effect between the Union and Cole European. It is for the foregoing reasons that I find that the Gen- eral Counsel has failed to establish that Qvale told the 6 Citing Alvin ! Bart & Co., 236 NLRB 242 (1978), the General Coun- sel argues I should credit the sworn affidavit given by mechanic Russell McKay to a Board agent during the investigation of this case to the extent that it contradicts his testimony , by stating Qvale told the mechan- ics "I am not going to recognize the Union as the bargaining agent " Re- spondent argues that McKay's affidavit is hearsay under the Federal Rules of Evidence and argues that while the disputed statement con- tained in the affidavit may be considered for purpose of attacking McKay's credibility, it is not admissible for the truth of the matter con- tained therein , where, as here, Respondent has specifically objected to the hearsay character of the affidavit I have not considered Respondent's contention because after considering McKay's testimonial demeanor, con- sidering his testimony given during direct and cross -examination, consid- ering the contents of his affidavit, and considering the record as a whole, especially that none of the other witnesses corroborated McKay's state- ment that Qvale told the mechanics he would not recognize the Union, I am not persuaded that the statement contained in his affidavit was more reliable than his testimony and was what really occurred Moreover, I note that McKay's statement that Qvale said he would not recognize the Union, does not jibe with Parola's testimony nor with the testimony of any of the other witnesses who testified concerning this meeting BURLINGAME SAAB mechanics that he would not sign a collective -bargaining contract with the Union. b. Qvale allegedly tells Parola Respondent would not sign the union contract General Counsel contends that shortly after Qvale's June meeting with the mechanics, he told mechanic Parola Respondent would not sign the union contract, thereby violating Section 8 (a)(1) of the Act. I am per- suaded, for the reasons below , that this contention is without merit. General Counsel relies on Parola's testimony that in June, a few days after Qvale spoke to the mechanics as a group, that Parola asked Qvale whether or not they were going "to be in the Union," and testified that in re- sponse Qvale stated, "virtually the same thing he said in the insurance meeting [referring to Qvale's meeting in June with the mechanics], that he would not sign the contract." As I have found supra, at his meeting with the mechanics held earlier in June, Qvale explained to the mechanics, including Parola, that although he intended to negotiate for a contract with the Union, that he did not intend to assume the current collective -bargaining agreement in existence between Cole European and the Union. That this is what Qvale repeated to Parola, when he spoke to him a few days after the June meeting, is es- tablished by Parola's testimony that Qvale stated "virtu- ally the same thing" as he had previously stated to the mechanics during the June meeting and by Parola's ad- mission that Qvale told him he would not sign "the" rather than "a" contract with the Union . In any event, even if Qvale only told Parola that he did not intend to sign "the" contract, when viewed in the context of Qvale's previous explanation to Parola and the other me- chanics, Parola must have realized that Qvale was not talking in terms of an intent not to enter into a collec- tive-bargaining contract with the Union , but was merely speaking in terms of Respondent not agreeing to assume the existing contract between the Union and Cole Euro- pean. c. Qvale's meeting with the service writer and the parts department employees General Counsel contends that during a June meeting with service writer Madamba and parts department em- ployees Wing and Lopez, Respondent violated Section 8(a)(1) of the Act, when Qvale asked them if they ob- jected to working in a nonunion shop and stated he in- tended to make the shop nonunion . I am persuaded, for the reasons below, that this contention lacks merit. General Counsel relies on Madamba's testimony and pretrial affidavit.' He testified that during a June meet- 7 Also in support of this contention General Counsel relies upon the affidavit submitted to the counsel for the General Counsel I I days before the hearing by Wing, who, a few days before the hearing , was subpoe- naed by the General Counsel to testify Wing, however, failed to appear at the hearing. This was no surprise to the General Counsel , who, 6 days prior to the hearing, advised Respondent 's counsel that because Wing would be unavailable as a witness, the General Counsel , pursuant to sec. 804(b)(5) of the Federal Rules of Evidence, intended to rely on portion of Wing's affidavit, which portion was summarized for the benefit for Re- spondent's counsel . Respondent objected to the admission into evidence 233 ing between himself, Wing, Lopez, and Qvale, when Wing or Lopez asked if they would be working, like Qvale's San Francisco employees, without a union con- tract, Qvale responded by asking them if they would mind being employed in a nonunion shop. In his pretrial affidavit Madamba stated that during this meeting Qvale asked Madamba, Lopez, and Wing if they objected to withdrawing from the Union and working in a nonunion shop and advised them that Qvale was nonunion in San Francisco and intended to make this shop nonunion also. 8 Qvale specifically denied making the aforesaid state- ments attributed to him . Rather he testified that in June he met once with Madamba, Wing, and Lopez, as a group, and was questioned about the shop's union status and answered the question by using the same words he used in answering a similar question during his June meeting with the mechanics. As I have found supra, during his meeting with the mechanics , Qvale told them he intended to negotiate or bargain with the Union, but did not intend to assume the current contract in existence between Cole European and the Union. Qvale also testi- fied that during his meeting with Madamba, Lopez, and Wing, he was asked about the union situation at his San Francisco dealership and responded by stating that the San Francisco dealership was still negotiating with the union which represented the service department employ- ees there and that the union which represented the parts department employees in San Francisco had been decer- tified by the employees a few months earlier. Qvale's testimonial demeanor, which was good, was better than Madamba's when they gave their aforesaid- testimony. It is for this reason that I credit his testimony and reject Madamba's. of Wing's affidavit and I refused to admit it into evidence. The reason for my ruling was that the General Counsel failed to establish that Wing was unavailable to testify within the meaning of Fed.R .Evid. 804. Thus, in support of her contention that Wing was unavailable to testify , counsel for the General Counsel represented that Wing was in Mexico on a vaca- tion (Tr p. 135) There is no indication that Wing indicated to the coun- sel for the General Counsel by words or conduct that he would not be available to testify in this proceeding upon his return from vacation Under the circumstances there is insufficient showing that Wing was un- available as a witness within the meaning of Fed .R Evid 804 8 Citing Alvin J Bart A Co, supra, the General Counsel argues I should credit the sworn affidavit given by Madamba to a Board agent during the investigation of this case to the extent that it contradicts his testimony, by stating that Qvale asked Madamba , Lopez, and Wing if they objected to withdrawing from the Union and informed them he was nonunion in San Francisco and intended to make this dealership nonunion also Respondent argues that Madamba 's affidavit is hearsay under the Federal Rules of Evidence and that while the statements contained in the affidavit may be considered for purposes of attacking his credibility, they are inadmissible for the truth of the matter, where, as here, Respondent specifically objected to the hearsay character of the affidavit . I have not considered Respondent's contention because after considering Madamba's testimonial demeanor, considering his testimony given during direct and cross-examination, considering his explanations for the contradictions be- tween his testimony and affidavit , and considering the record as a whole, particularly the lack of testimony corroborating the matters relied upon in his affidavit, I am not persuaded that the statements contained in Ma- damba's affidavit were more reliable than his testimony and were what really was stated 234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD d. Allee speaks to Parola about Respondent's benefit plan General Counsel contends that in June Respondent violated Section 8(a)(1) of the Act when Service Manag- er Allee told mechanic Parola he had to withdraw from the Union in order to be eligible for Respondent's new pension plan and that later in June asked Parola if he had withdrawn from the Union and again informed Parola that his pension coverage under Respondent's plan was conditioned upon his withdrawal from the Union. I am persuaded , for the reasons below, that this contention lacks merit. General Counsel relies upon Parola's testimony, de- scribed in detail supra, that shortly after Respondent's June 20 takeover of the dealership, Allee told him Re- spondent "could not pay into two pension plans"and "therefore I could not be in the Union," and his further testimony that a few days before July 1, Allee told him that because Respondent could not pay into two pension plans Parola had to be out of the Union by July 1. Allee, on the other hand, specifically denied making the afore- said statements Parola attributed to him . Rather Allee, as described in detail supra, testified that late in June, during the only conversation he had with Parola about the Respondent's benefit plans, he spoke to Parola about completing the paperwork if he wanted to participate in those plans and told him that Respondent wanted to start its 401K pension plan by July 1 and if Parola intended to sign up for that plan , he would have to notify Respond- ent's office manager. Allee's testimonial demeanor, which was good, was better than Parola's. It is for this reason that I credit Allee's and reject Parola's above-described testimony.9 In evaluating Allee's and Parola's aforesaid testimony, I have also considered that General Counsel's witness Smith, a mechanic employed by Respondent, did not corroborate Parola's testimony . As described in detail supra, during the same period of time Allee had his con- versation with Parola about Respondent's benefit plans, Allee spoke to Smith concerning the same subject. Smith testified Allee told him he needed to fill out the paper- work for Respondent's new benefit plans and further tes- tified that the only other thing Allee stated to him at the time was, "You can't have both plans, both the Union one and the new company plan, so you'd better make up your mind what you want to do." There is nothing in the record to explain why Allee would condition Paro- la's participation in Respondent's benefit plans on his withdrawal from the Union , but not impose the same condition upon Smith's participation in those plans.10 9 1 also reject Parola's further testimony that on July 1, in Allee's pres- ence, Vice President/General Manager Qvale asked Parola if he had withdrawn from the Union, asked why Parola had withdrawn from the Union, and that Qvale became very upset when Parola told him Allee had instructed him to withdraw from the Union. As described in detail supra, Qvale gave a significantly different description of what occurred when he spoke to Parola on this occasion and his testimony in effect con- tradicted Parola's aforesaid testimony Qvale's testimonial demeanor, which was good , was better than Parola's. It is for this reason that I reject Parola's aforesaid testimony 10 I considered that on June 30 both Parola and Smith withdrew from membership in Local Lodge 1414. This, however, does not warrant the inference that Respondent had informed them it was conditioning their e. Qvale's mid-July conversation with Smith General Counsel contends that Vice President/General Manager Qvale, during a mid-July conversation with me- chanic Smith, violated Section 8(a)(1) of the Act by tell- ing Smith that Qvale would not sign a contract with the Union. I am persuaded, for the reasons below, that this contention lacks merit. As described in detail supra, Smith , a witness for the General Counsel, testified that in mid-July he com- plained to Qvale that he did not think it was fair for the employees to have lost a $1-an-hour pay raise by leaving the Union, that Qvale answered by stating this was the way the things were going to be, and that was the end of the conversation. As described in detail supra, Smith 's aforesaid testimo- ny conflicts with his pretrial affidavit which , in pertinent part, states that in response to Smith's mid-July com- plaint about the employees' loss of the $1-an-hour pay raise which had been due them under the successor em- ployer's contract with the Union, that Qvale responded by stating: ..you can stay in the union if you want but you won't get 1.00 wage increase and I won 't sign a union contract." Qvale might have just stated "I won't sign a contract." He meant a union contract. I cannot recall if he specifically used the term 'union' but that is what he meant. Citing Alvin J. Bart & Co., supra, the General Counsel argues I should credit the sworn affidavit submitted by Smith to a Board agent during the investigation of this case to the extent it contradicts his testimony , by stating that Qvale told him he did not intend to sign a union contract. Respondent 'argues that Smith's affidavit is hearsay under the Federal Rules of Evidence and argues that while the disputed statement contained in the affida- vit may be considered for purposes of attacking Smith's credibility, it is not admissible as evidence of the truth of the matter when, as here, Respondent has specifically ob- jected to the hearsay character of the affidavit. Considering Smith's testimonial demeanor, considering his testimony as a whole, considering the contents of his affidavit, and considering the record as a whole, in par- ticular the lack of credible evidence to establish that any representative of Respondent, including Qvale, made a statement to an employee like the statement contained in Smith's affidavit, I am not persuaded that the statement contained in Smith's affidavit was more reliable than his testimony and was what really occurred. t t In any event, eligibility to participate in Respondent 's benefit plans on their withdrawal from union membership. Smith's testimony, supra, does not support this inference, and the record as a whole indicates the likelihood that Parola and Smith withdrew from the Union because they knew Respondent did not intend to pay them the $1-an-hour pay raise called for by the prede- cessor employer's contract with the Union or continue the health and pension benefit provisions of that contract I also note that it was on the day that Parola and Smith withdrew from the Union that Respondent, as described infra, announced its refusal to recognize the Union as the em- ployees' collective-bargaining representative i 1 In view of this conclusion I have not considered Respondent's con- tention that, under the circumstances of this case, it was impermissible for Continued BURLINGAME SAAB even if in mid-July Qvale told Smith that Qvale did not intend to sign a contract with the Union, this statement did not violate Section 8(a)(1) of the Act because, as I have found infra, Respondent at that time was not legal- ly obligated to recognize and bargain with the Union. Ultimate Conclusions Having found, supra, that the General Counsel failed to establish that Qvale and Allee engaged in any of the misconduct attributed to them in paragraph 7 of the complaint, as amended, and having also found that even if Qvale had engaged in some of the alleged misconduct attributed to him that it would not have constituted a violation of Section 8(a)(1) of the Act, I shall recom- mend the dismissal of the complaint's allegations insofar as they allege Respondent violated Section 8(a)(1) of the Act by virtue of Qvale's and Aliee's conduct. 2. The alleged refusal to bargain As I have found supra, when Respondent on June 20 took over the operation of the business involved herein as the successor-employer of Cole European, it was obli- gated under Section 8(a)(5) of the Act to treat the Union as an incumbent union and to recognize and bargain with it as the collective-bargaining representative of Respond- ent's mechanics and service writers, unless it demonstrat- ed either that the Union no longer enjoyed majority sup- port on the date of its refusal to bargain or that it had a good-faith doubt of the Union's continued majority sup- port. Westwood Import Co., 251 NLRB 1213, 1225 fn. 21 (1980). Respondent takes the position that on June 30 it was privileged to withdraw recognition from the Union and refuse to bargain with the Union because of its good-faith doubt of the Union's continued majority status. In this regard the Board in Hearst Corp., 281 NLRB 764 (1986), set forth the following statement of longstanding legal principles: It is well settled that an employer may not lawfully withdraw recognition from an incumbent union be- cause of an asserted doubt of the union's continued majority status unless the assertion of doubt is based on objective considerations sufficient to afford the employer a reasonable ground for believing that its employees no longer desire to be represented by the union. The asserted doubt, however, may not be raised in the context of any employer activities aimed at causing employee disaffection with the union. Decertification petitions . . . will generally be sufficient to cast doubt on a union's continued ma- jority status if signed by a majority of the employ- ees, and will afford an employer a reasonable basis for withdrawing recognition from a labor organiza- tion, provided that, prior thereto, the employer has not engaged in conduct designed to undermine em- ployee support for, or cause their disaffection with, the union. [Citations omitted.] me to consider Smith's affidavit for the purpose of making findings as to the truth of the disputed matter asserted therein 235 In the instant case, as I have found supra, on June 30 Respondent withdrew recognition from the Union and refused to bargain with the Union based on a petition signed by a majority of Respondent's employees repre- sented by the Union, which stated that the employees .,no longer grant exclusive representation to Peninsula Automotive Machinists Lodge No. 1414 for all activities related to [their] employment by [Respondent.]" As I have found supra, there is insufficient evidence to estab- lish that Respondent engaged in any of the unfair labor practices, alleged in the complaint, thus tainting the peti- tion. Nor is there evidence that the petition was other- wise tainted by Respondent 's conduct. Under the cir- cumstances I find that Respondent 's refusal to recognize and bargain with the Union was predicated on a good- faith and reasonably grounded doubt, supported by ob- jective considerations, of the Union's majority status. I therefore find that by its refusal to recognize and bargain with the Union on June 30, Respondent did not violate Section 8(a)(5) and (1) of the Act, as alleged in the com- plaint. In concluding the petition signed by the employees af- forded Respondent a reasonable basis for questioning the Union's majority status, I considered the Union 's conten- tion that the petition did not provide a reasonable basis for questioning the Union's majority status because it named only Peninsula Auto Mechanics, Lodge No. 1414. In this regard the record reveals that Respondent's me- chanics and service writers were jointly represented for purposes of collective bargaining by two labor organiza- tions affiliated with the International Association of Ma- chinists; Peninsula Auto Mechanics, Lodge No. 1414 and District Lodge No. 190. The employees' petition, howev- er, was worded in terms of just Peninsula Auto Mechan- ics, Lodge No. 1414. Nevertheless, by advising Respond- ent that a majority of the unit employees no longer wanted to be represented by Peninsula Auto Mechanics Lodge No. 1414, the petition was sufficient to afford Re- spondent a reasonable basis for doubting the majority status of the employees' joint-bargaining representatives. For, Respondent was not obligated under Section 8(a)(5) of the Act to recognize and bargain with either Penin- sula Auto Mechanics, Lodge No. 1414 or District Lodge No. 190; it was obligated to recognize and bargain with both of those labor organizations jointly. Therefore, the mention of just one of the joint bargaining representa- tives in the petition was sufficient to give Respondent a reasonable doubt of the joint representatives' majority status. I also reject the Union's further contention that Re- spondent may not rely upon the petition for questioning the Union's majority status because the petition was tainted by Respondent's illegal unilateral changes in the employees' initial terms and conditions of employment when, on June 20, Respondent took over the business from the predecessor employer. This contention lacks merit for these reasons: (1) The complaint does not allege that Respondent violated the Act by unilaterally setting the unit employees' initial terms and conditions of employment or by otherwise unilaterally changing the employees' terms and conditions of employment, and, 236 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD after considering amending the complaint to include such an allegation, counsel for the General Counsel decided against doing so. (2) It was not until all of the parties to this proceeding had concluded presenting their cases and had rested, that the Union for the first time announced it was taking the position that the employees' petition had been tainted by Respondent's unilateral change in the employees' initial terms and conditions of employment, thus Respondent was not afforded a fair opportunity to prepare for and to litigate this issue. (3) The question of whether Respondent violated the Act by unilaterally changing the employees' terms and conditions of em- ployment when it took over the predecessor employer's business was not in fact litigated during this proceeding. (4) Assuming for the sake of argument that the matter was fully and fairly litigated , there is insufficient evi- dence to establish that Respondent, as contended by the Union, violated the Act by unilaterally changing employ- ees' terms and conditions of employment when it took over the business and set the employees' initial terms and conditions of employment. On the foregoing findings of fact and conclusions of law, and on the entire record, I issue the following rec- ommended 1 z ORDER The complaint is dismissed in its entirety. 12 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 pur- poses