Royal Midtown Chrysler Plymouth, Inc.

ROYAL MIDTOWN CHRYSLER PLYMOUTH Royal Midtown Chrysler Plymouth, Inc. and Dis- trict 9, International Association of Machinists and Aerospace Workers, AFL-CIO and Auto- motive, Petroleum and Allied Industries Union Local No. 618, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, AFL-CIO.' Cases 14-CA-17815 and 14-CA-17834 September 29, 1989 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On August 12, 1985, Administrative Law Judge Elbert D. Gadsden issued the attached decision in this proceeding. The Respondent filed exceptions and a supporting brief. On May 1, 1986, the judge filed the attached supplemental decision in this pro- ceeding.2 The Respondent and the General Coun- sel filed exceptions and supporting briefs. The Re- spondent also filed a motion to strike sections A and B of the judge's supplemental decision. 3 The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision, the sup- plemental decision, and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,4 and conclusions only to the extent consistent with this Decision and Order. ' On November 1, 1987, the Teamsters International Union was read- mitted to the AFL-CIO. Accordingly, the caption has been amended to reflect that change 2 The Board remanded this case to the judge for further consideration of whether the Respondent violated Sec 8(a)(5) and (I) of the Act by failing to recognize and bargain with the Machinists and whether the Re- spondent violated Sec. 8(a)(1) of the Act by telling an employee during a preemployment interview that the Respondent would operate a nonunion shop. 3 In secs. A and B, the judge made additional findings concerning his conclusion in the original decision that the Respondent violated Sec 8(a)(5) and (1) of the Act by failing and refusing to recognize and bargain with the Teamsters The Board did not request these additional findings in its remand order In view of the discussion below concerning the Re- spondent's obligation to bargain with the Teamsters, we find it unneces- sary to pass on the judge's additional findings in his supplemental deci- sion or on the Respondent's motion to strike. 4 The Respondent has excepted to some of the judge's credibility find- ings 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 F2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings We agree with the judge that the Respondent violated Sec . 8(a)(1) of the Act when , as the credited testimony shows, its agent John Van Hoogstraat told employee Jere Tyrer during a preemployment interview that the Respondent's operation would "be a nonunion shop" While statements to the effect that an employer has a nonunion work force may sometimes be merely descriptive and not unlawful, Van Hoogstraat's statement, given its context , had a reasonably foreseeable coercive impact The Respondent had agreed to interview all the predecessor's 1039 1. The judge found, inter alia, that the Respond- ent violated Section 8(a)(5) and (1) of the Act by failing and refusing to recognize and bargain with the Charging Party Teamsters and the Charging Party Machinists. For the reasons set forth below, we agree with the judge's findings concerning the Machinists, but find, contrary to the judge, that the Respondent did not violate the Act by refusing to bargain with the Teamsters.5 The facts are set forth in detail in the judge's de- cision. Briefly, from November 1982 until early 1984, R. Michael Sheahan and Christopher Blu- meyer operated Quality Chrysler Plymouth Sales, Inc. (Quality). The Teamsters and Machinists were parties to separate contracts with Quality covering parts and delivery employees and mechanics, re- spectively, which expired on July 31, 1984. In early 1984, Quality experienced financial problems and Sheahan purchased Blumeyer's interest in Quality and became its sole owner. On December 7, 1984, Harold Arbeitman and Edwin Sapot purchased Quality from Sheahan and changed the name to Royal Midtown Chrysler Plymouth, Inc. (the Respondent). Sapot and Ar- beitman became co-owners and president and vice president, respectively. By December 14, 1984, the Respondent had hired four of the five employees previously employed in the predecessor employer's Machinists unit and three of the four employees previously employed in the predecessor's Team- sters unit.6 employees who it knew were represented by the Union . By stating un- equivocally that the Respondent was going to operate a nonunion shop, Van Hoogstraat conveyed the message that , regardless of the circum- stances, the Respondent would refuse to bargain with the employees' col- lective-bargaining representative Further, the manner in which the state- ment was made in the hiring interview implicitly invited a response from the employee concerning whether he had any objection to such condi- tions The Board has recognized that statements of this kind made in em- ployment interviews may amount to coercive interrogation, even in the absence of threats See Groves Truck & Trailer, 281 NLRB 1194, 1201 (1986) We also note that in this case , the implications of Van Hoog- straat's statement in the interview were reinforced both by the subsequent conduct of Service Manager William Pinkley, who not only inquired about the union sentiments of the machinists, but also sought to give them unsolicited assistance in withdrawing from the Union and by the Respondent's subsequent unlawful refusal to bargain with the Machinists 5 We find no merit in the Respondent 's contention that the two bar- gaining units are not appropriate units for bargaining We note that the Respondent failed to present any evidence at the hearing to support its contention that the units are not appropriate and that it offers only a simple assertion to support its claim 6 The Respondent continued operations immediately after taking over Quality. There was no hiatus in operations and there is no claim that the Respondent intended to expand the work force in either unit Thus, the Respondent intended to employ the same number of employees in each unit that were employed by Quality Two of the three employees in the Teamsters unit were hired on December 7 and the other, Ronald Payne. was hired on December 14 Payne served as parts manager for both Quality and the Respondent and the judge included him in the unit Payne was terminated on December 26, 1984. The Respondent claims that Payne and Donald Miller, hired to replace Payne, should not be in- cluded in the unit because they were/are statutory supervisors We find it Continued 296 NLRB No. 135 1040 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On January 9, 1985, representatives from the Teamsters and the Machinists requested that Ar- beitman recognize and bargain with their respec- tive units. The Respondent refused these requests and also failed to respond to a followup letter dated January 9, 1985, sent by the Machinists rep- resentative. On January 9, 1985, it is undisputed that a majority of employees in the Machinists unit were former employees of Quality and that of the four employees in the Teamsters unit , only one had been previously employed by Quality. We agree with the judge's finding that the Re- spondent is a successor to Quality based on a sub- stantial continuity in the employing industry.' The judge further found that the Respondent was obligated to bargain with the Machinists and Teamsters on, and subsequent to, the change in ownership on December 7, 1984, because a repre- sentative complement of the Respondent's work force was on the job and a majority of those em- ployees in each unit were former employees of Quality. 2. The Respondent contends in its exceptions, inter alia, that the judge applied an incorrect date for determining when a majority existed . Accord- ing to the Respondent, a majority exists "when demand for bargaining has been made and a repre- sentative complement is on the job." The Respond- ent claims that, therefore, the applicable date for determining when the bargaining obligation at- taches in this case is January 9, 1985 , when the demand for bargaining was first made . Since on that date only one of the four unit employees was a former employee of Quality, the Respondent con- tends that it has no obligation to bargain with the Teamsters. We find merit in the Respondent's argu- ment. Successorship does not automatically carry with it the obligation to bargain with the union that rep- resented the predecessor's employees. Nor does the fact that the union represents a majority of the suc- cessor's employees in an appropriate unit operate unnecessary to pass on Payne 's and Miller's status because such a deter- mination would not change the result in this case. The judge found that William Pinkley, one of the Quality Machinists- unit employees hired by the Respondent , became a supervisor on being hired by the Respondent This finding is consistent with the parties ' stipu- lation that Pinkley, who was the service manager for the Respondent, was a supervisor within the meaning of Sec 2(11) of the Act In addition, we note the judge's finding, supported by the record, that service manag- ers had traditionally been excluded from the Machinists unit. The Re- spondent excepted to the judge 's finding in his supplemental decision that Pinkley should be included in the unit In light of the parties ' stipulation that Pinkley was a supervisor, the judge's finding that he was a supervi- sor, and the past practice regarding exclusion of service managers from the unit, we find merit in the Respondent 's exception and exclude Pinkley from the unit This does not affect the finding that a majority of the em- ployees in that unit on January 9, 1985, were former employees of Qual- ity r See Fall River Dyeing Corp. Y. NLRB, 482 U S 27 ( 1987). alone to invoke the bargaining obligation; and this is so even when the successor has attained a "sub- stantial and representative complement" of employ- ees. The bargaining obligation-albeit potentially present when successorship and representative complement are established-must be triggered by a demand for recognition or bargaining.8 It fol- lows, therefore, that the determination of whether the successor has incurred a bargaining obligation must be assessed at that time rather than when successorship takes place . Of course, if a demand is made concurrent with the establishment of succes- sorship or the attainment of a representative com- plement, or, even prematurely but is continuing, the obligation will attach upon the occurrence of such events. But where no demand is made until some time after successorship and representative complement have occurred, the obligation will rise or fall depending on the union's representation among the unit employees at the time of its demand.9 With these principles in mind , we decide the issue concerning the Teamsters' claim. Although the Respondent employed a represent- ative complement of employees in the Teamsters unit on December 14, 1984, and a majority of these employees were former employees of Quality, no demand for bargaining was made at that time. It was not until January 9, 1985, that the Teamsters made a demand for recognition and bargaining. At this time, only one of four unit employees was a former employee of Quality. Therefore, in assessing the Respondent's bargaining obligation with the Teamsters under these circumstances, we conclude that the Respondent was not obligated to recognize and bargain with the Teamsters. Accordingly, we shall dismiss the complaint allegation that the Re- 8 See Fall River Dyeing Corp. Y. NLRB, 482 U S at 46, Grico Corp, 265 NLRB 1344, 1345 ( 1982), Hudson River Aggregates, 246 NLRB 192 fn 3 (1979), enfd . 639 F.2d 865 (2d Cir 1981 ), Bengal Paving Co., 245 NLRB 1271, 1272 (1979) 8 As the Supreme Court noted in Fall River, the Court in NLRB v. Burns Security Services, 406 U S 272 ( 1972), did not have to consider when the successor's obligation to bargain arose. In Fall River, the Court agreed with the Board and the Court of Appeals for the First Circuit that the so-called substantial and representative complement rule fixes "the moment when the determination as to the composition of the successor's workforce is to be made " Fall River, 482 U S at 47 In Fall River, the union demanded recognition before the time such a complement was reached and the Court , therefore, was not faced with the situation pre- sented here, i e, a demand made after a union had lost majority status in a representative complement of unit employees. Nevertheless, in finding that the Board's "continuing demand " rule is reasonable, the Court stated . "[t]he successor's duty to bargain at the 'substantial and represent- ative complement' date is triggered only when the union has made a bar- gaining demand " (Emphasis added ) Id at 46. Although these statements of the Court did not address the majority status of the union in Fall River at the time of the demand , a full reading of the Court's opinion and the principles enunciated therein presume that the union enjoyed majority status among the unit employees at the time the demand for bargaining matured. ROYAL MIDTOWN CHRYSLER PLYMOUTH spondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Teamsters. i o 3. The Respondent does not dispute the finding that a majority of employees in the Machinists unit were former employees of Quality. Instead, the Re- spondent contends that its refusal to recognize and bargain with the Machinists is based on a good- faith doubt as to the majority status of that unit. The judge failed to address this issue in his original decision and then rejected the Respondent's con- tentions in his supplemental decision . We agree with the judge's findings that the Respondent failed to establish that it had sufficient objective consider- ations to justify a good-faith doubt as to the major- ity status of the Machinists. In order to establish a good-faith doubt as to ma- jority status the evidence must demonstrate a clear intention by the employees not to be represented by the union. Parkview Furniture Mfg. Co., 284 NLRB 947 at 972 (1987). Here, the Respondent relies on Pinkley's testimony that three of the four employees in the Machinists unit stated that they did not desire union representation . Initially, we note that Pinkley's comment to Arbeitman that the 1° In his original decision the judge interpreted Canterbury Villa, 271 NLRB 144 (1984), to hold that a bargaining demand is not needed to trigger the bargaining obligation and that the only appropriate date for determining majority status is when the successor employer employs a representative complement of the predecessor's employees. It appears that the judge misinterpreted Canterbury Villa and failed to take into ac- count the particular facts of that case In Canterbury Villa, the alleged successor employer contested the Board's certification of the union pursuant to an election conducted among the predecessor 's employees. The union had won the election and the predecessor, Mary Kenny, filed objections. On March 1 , 1983, while those objections were still pending before the Board, Canterbury Villa purchased the assets and took over the operation from Mary Kenny. On August 11 , 1983, the Board overruled the objections and certified the union. On August 23, 1983, the union requested recognition and bargain- ing from Canterbury Villa Canterbury Villa refused . The Board found that Canterbury Villa was the successor to Mary Kenny-noting inter alia that the majority of Canterbury Villa's employees on March 1 had been employed by Mary Kenny-and that Canterbury Villa's refusal to bargain was unlawful , notwithstanding that on August 23 when the union demanded bargaining, only 30 percent of the unit employees were former employees of the predecessor. In this latter regard , the Board found that the passage of time and unit changes occurring since successorship had been established did not justify Canterbury Villa's refusal to bargain. The Board's holding in Canterbury Villa is predicated on the following propositions : once a union establishes its majority status in a Board-con- ducted election, unless and until the Board determines that the election results are invalid because of objectionable conduct , the union 's status as the chosen representative of the employees is not affected by a change in identity of the employees' employer, the union 's majority status remains constant from the date it was established in the election throughout the resolution of the question concerning representation in the union's favor; and the certification of the union that follows is binding whether the em- ployer then is the predecessor or successor. Dynamic Machine Co, 221 NLRB 1140, 1142 ( 1975), enfd 552 F.2d 1195 (7th Cir 1977 ). In other words, for the purpose of resolving the question concerning representa- tion in the election proceeding , the Board in Canterbury Villa saw no reason to differentiate between situations involving an unchanged em- ployer and those involving an employer that is replaced by a successor Furthermore, in Canterbury Villa the union's continuing interest in being recognized as the employees' bargaining representative was implicit in the union's continuing participation as a party in the election proceeding Clearly, these are not the circumstances here 1041 employees did not care one way or the other about the Union and that 75 percent did not want the Union (i.e., Pinkley's paraphase of comments made to him) is insufficient to support the Respondent's assertion of a good-faith doubt of the Machinists' majority status. As noted below, an investigation of the basis for Pinkley's comment to Arbeitman dis- closes that the employees' statements to Pinkley did not evidence a clear intention not to be repre- sented by the Machinists. According to the cred- ited testimony of one of those three employees, Robert Bailey, Bailey never told Pinkley he did not want the Union . The judge further pointed out that, on cross-examination, Pinkley acknowledged that Bailey never made such a categorical state- ment (that he did not want the Union), but simply said he did not care whether or not they had a union. In addition, the judge pointed out that the other two employees, Follmer and Mazzuca, did not testify at the hearing and were not available to affirm or deny the union sentiments attributed to them by Pinkley. Thus, while the judge credited Pinkley's testimony that he told Vice President Ar- beitman that a majority did not want the Union, he discredited the authenticity of Pinkley's report to Arbeitman regarding such employees' union senti- ments. In such circumstances , we agree with the judge's finding that the Respondent failed to show that a majority of the employees in the Machinists unit expressed a clear intention not to be represent- ed by the Machinists. ORDER The National Labor Relations Board orders that the Respondent, Royal Midtown Chrysler Plym- outh, Inc., St. Louis, Missouri, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize and bargain with Dis- trict 9, International Association of Machinists and Aerospace Workers, AFL-CIO (Machinists Union) as the exclusive collective-bargaining representative of the employees in the following appropriate bar- gaining unit with regard to their wages, hours, working conditions, and other terms and conditions of employment: All journeymen automobile and truck mechan- ics, machinists, electrical machinists, welders, trimmers, metal men, fender, body painters, ra- diator repairmen, refrigeration, automotive air conditioning mechanics, inspectors, glass in- stallers, service salesmen and towermen, ap- prentices, and working foremen, and specialists employed by the Respondent at its St. Louis, Missouri facility EXCLUDING office clerical 1042 DECISIONS OF THE NATIONAL LABOR -RELATIONS BOARD and professional employees, guards, and super- visors as defined in the Act. (b) Failing and refusing to furnish the Machinists Union information that is relevant and necessary to its role as the exclusive bargaining representative of the unit employees. (c) Requesting, urging, and assisting employees to request a withdrawal card or to withdraw from the Machinists Union, or from any other labor or- ganization. (d) Telling employees it will operate a nonunion business. (e) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Recognize and, upon request, bargain collec- tively with District 9, International Association of Machinists and Aerospace Workers, AFL-CIO as the exclusive bargaining representative of the unit employees with regard to wages, hours, working conditions and other terms and conditions of em- ployment of the unit employees, and if an under- standing is reached, embody such understanding in a signed agreement. (b) On request, furnish the Machinists Union, the information that is relevant and necessary to its role as the exclusive bargaining representative of the unit employees, including the information re- quested in its January 9, 1985 letter. (c) Post at its business facility located at 4315 South Kingshighway, St. Louis, Missouri, copies of the attached notice marked "Appendix." " Copies of the notice, on forms provided by the Regional Director for Region 14, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted . Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered , defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. " 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 " 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. WE WILL NOT fail or refuse to recognize and bargain with District 9, International Association of Machinists and Aerospace Workers, AFL-CIO as the exclusive bargaining representative of the employees in the following appropriate unit with regard to the wages, hours, working conditions, and other terms and conditions of employment. All journeymen automobile and truck mechan- ics, machinists, electrical machinists, welders, trimmers, metal men, fender, body painters, ra- diator repairmen, refrigeration, automotive air conditioning mechanics, inspectors, glass in- stallers, service salesmen and towermen, ap- prentices, and working foremen, and specialists employed at our St. Louis, Missouri facility EXCLUDING office clerical and professional employees, guards, and supervisors as defined in the Act. WE WILL NOT fail and refuse to furnish informa- tion requested by District 9, International Associa- tion of Machinists and Aerospace Workers, AFL- CIO that is relevant and necessary to its role as the exclusive bargaining representative of the unit em- ployees. WE WILL NOT request , urge, or assist our em- ployees to request a withdrawal card or withdraw from District 9, International Association of Ma- chinists and Aerospace Workers, AFL-CIO or from any other labor organization. WE WILL NOT tell our employees that we will operate a nonunion business. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, recognize and bargain col- lectively with District 9, International Association of Machinists and Aerospace Workers, AFL-CIO as the exclusive bargaining representative of the employees in the appropriate unit described above, with regard to their wages, hours, working condi- tions, and other terms and conditions of employ- ment and, if an understanding is reached , embody such understanding in a signed agreement. ROYAL MIDTOWN CHRYSLER PLYMOUTH WE WILL, on request, furnish information re- quested by District 9, International Association of Machinists and Aerospace Workers, that is relevant and necessary to its role as the exclusive bargaining representative of the unit employees, including the information requested in its January 9, 1985 letter. ROYAL MIDTOWN CHRYSLER PLY- MOUTH, INC. Michael T. Jamison, Esq., for the General Counsel. Michael E. Kaemmerer, Esq. (Buechner, McCarthy, Leon- ard, Kaemmerer, Guest & Owen), of St. Louis, Missou- ri, for the Respondent. Nancy M. Watkins, Esq. (Wiley, Craig, Armbruster & Wil- burn), of St. Louis, Missouri, for Teamsters Local 618. DECISION STATEMENT OF THE CASE ELBERT D . GADSDEN, Administrative Law Judge. Charges of unfair labor practices were filed on 24 Janu- ary 1985 and 8 February 1985, respectively, by District 9, International Association of Machinists and Aerospace Workers, AFL-CIO (Machinists or Charging Party), and Automotive, Petroleum and Allied Industries Union Local No. 618, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Teamsters or Charging Party), against Royal Midtown Chrysler Plymouth, Inc. (the Respondent). On behalf of the General Counsel, the Regional Director for Region 14, issued an order consolidating cases and a con- solidated complaint, and an amended consolidated com- plaint against the Respondent on 7 March 1985 and 18 April 1985, respectively. In substance, the amended consolidated complaint al- leged that Respondent is the successor of Quality Chrys- ler Plymouth, and as such, it is the continued employing entity of Quality; that by virtue of the unexpired collec- tive-bargaining agreement in effect between Quality and the Charging Parties, Respondent is bound to recognize and bargain with the respective Charging Parties; that Respondent is bound to recognize and bargain with Charging Party Machinists , representing its mechanic unit employees, and Charging Party Teamsters , repre- senting its parts and delivery employees, respectively; that Respondent has interfered with , restrained, and co- erced its employees, by failing and refusing to furnish in- formation requested by Charging Party Machinists on behalf of Respondent's mechanic employees; that Re- spondent has failed and refused to recognize and bargain with Charging Party Teamsters , as the exclusive collec- tive-bargaining representative of its parts and delivery employees, and Charging Party Machinists, as the exclu- sive collective-bargaining representative of its mechanic employees; that by so failing and refusing , Respondent has violated Section 8(a)(1) and (5) of the Act; and that by independent statements and other conduct by repre- sentatives or agents of Respondent to unit employees, Respondent has violated Section 8 (a)(1) of the Act. 1043 The Respondent filed an answer and an amended answer on 29 March and 23 April 1985, respectively, de- nying that it has engaged in any unfair labor practices as alleged in the amended consolidated complaint. A hearing in the above matter was held before me in St. Louis, Missouri, on 20 and 21 May 1985. Briefs have been received from counsel for the General Counsel and counsel for the Respondent, respectively, which have been carefully considered. On the entire record, including my observation of the demeanor of the witnesses, and my consideration of the briefs filed by the General Counsel and Respondent, re- spectively, I make the following FINDINGS OF FACT I. JURISDICTION The uncontroverted and credited testimony of record shows that from November 1983 through December 7, 1984, Quality Chrysler Plymouth Sales, Inc. located at 4315 South Kingshighway, St. Louis, Missouri, annually had gross revenues in excess of $500,000; and that it pur- chased and had shipped from out of State to its Kings- highway facility Chrysler and Plymouth automobiles of a value in excess of $50,000 annually. The parties stipulat- ed that Quality Chrysler Plymouth Sales, Inc. was a Mis- souri corporation. I therefore conclude and find upon the foregoing cred- ited evidence that Quality Chrysler Plymouth Sales, Inc. was a Missouri corporate employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. The complaint alleges, the answer admits, and I find that Royal Midtown Chrysler Plymouth, Inc. is an em- ployer, engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The consolidated complaint alleges, the amended answer admits, and I find that Charging Party Machinists is, and has been at all times material herein, a labor orga- nization within the meaning of Section 2(5) of the Act. The consolidated complaint alleges, the amended answer admits, and I find that Charging Party Teamsters is, and has been at all times material herein, a labor orga- nization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Information Since 21 November 1982, Co-owners R. Sheahan and Christopher Blumeyer operated a Chrysler Plymouth dealership under the name of Quality Chrysler Plymouth Sales, Inc. (Quality), which sold new and used Chrysler and Plymouth automobiles. Shortly after commencing business operations, Blumeyer and Teamsters Local 618 (Teamsters or Charging Party) entered into a collective- bargaining agreement covering Quality's parts and deliv- ery employees, effective 5 November 1982 to 31 July 1984. Also, on or about 1 December 1982, Blumeyer and District 9 Machinists (Machinists or Charging Party) en- 1044 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tered into a collective-bargaining agreement covering Quality's mechanic employees, effective 1 December 1982 to 31 July 1984. Both the Teamsters and the Ma- chinists are Charging Parties in this proceeding. Quality also became a member of Greater St. Louis Automobile Association Signatory Group (GSAASG), a multiemployer bargaining organization authorized to ne- gotiate collective-bargaining agreements on behalf of its members with labor organizations representing employ- ees. Quality did not authorize GSAASG to negotiate and bind it to an agreement with the Machinists on behalf of its mechanic unit employees . However, Quality did assign bargaining rights and was a signatory member of GSAASG to negotiate with Teamsters on behalf of its parts and delivery unit employees. The latter authoriza- tion was never withdrawn. The uncontroverted record evidence also established that since on or about 1 December 1982 until 6 Decem- ber 1984, Charging Party Machinists was to be the desig- nated exclusive collective-bargaining representative of employees of Quality in the following appropriate unit: All journeymen automobile and truck mechanics, machinists, electrical machinists, welders, trimmers, metal men, fender, body painters, radiator repair- men, refrigeration, automotive air conditioning me- chanics, inspectors, glass installers, service salesmen and towermen, apprentices, and working foremen, and specialists employed by Quality at its St . Louis, Missouri facility EXCLUDING office clerical and professional employees, guards, and supervisors as defined in the Act. Since on or about 5 November 1982 until 6 December 1984, Charging Party Teamsters was to be the designated exclusive collective-bargaining representative of employ- ees of Quality in the following appropriate unit: All parts managers, counterpersons, parts depart- ment employees, lubrication men, heavy truck driv- ers, undercoat men, tire and battery department em- ployees, auto top installers, pressure type washers, polishers, new car clean-up employees, utility men, seat cover employees, paint shop helpers, motor riders, pickup and delivery and car jockeys, used car clean-up employees, porters, sweepers, and utili- ty shop employees employed by Quality at its St. Louis, Missouri facility EXCLUDING office cleri- cal and professional employees, guards, and supervi- sors as defined in the Act. In its answer, Respondent admitted that the following named persons occupied the positions set opposite their respective names, and are now, and have been at all times material herein, supervisors of Respondent within the meaning of Section 2(11) of the Act, and agents of Respondent within the meaning of Section 2(13) of the Act: Edwin Sapot-President Harold Arbeitman-Vice President Joe Perniciaro-General Manager The parties stipulated that William Pinkley, service manager, is a supervisor for Respondent within the meaning of Section 2(11) of the Act, and an agent within the meaning of Section 2(13) of the Act.' B. Respondent Purchased the Fixed Assets of Quality Chrysler Plymouth The uncontroverted and credited evidence established that in or about November 1982, Sheahan also held a 20- percent interest, and Blumeyer an 80-percent interest in Quality Volkswagen Sales . In early 1984, Quality Volks- wagen and Quality Chrysler Plymouth commenced expe- riencing financial difficulty and Co -owner R. Michael Sheahan purchased Blumeyer's interest in both Quality Volkswagen and Quality Chrysler Plymouth dealerships. Both dealerships were located at the same facility, 4513 South Kingshighway, St. Louis, Missouri. Sheahan closed the Volkswagen dealership and continued to oper- ate Quality Chrysler Plymouth. However Quality Chrys- ler Plymouth became delinquent on its contributions to the benefit funds of the bargaining units of both the Ma- chinists and Teamsters. Sheahan nevertheless made an effort to pay the contributions by making partial pay- ments on its delinquency to the Teamsters (Rod Jog- gerst) and the Machinists (Dave Meinell). Near the end of 1984, Sheahan commenced searching for interested purchases of the dealership of Quality Chrysler Plymouth. As a result of his efforts , Harold Ar- beitman and Edwin G. Sapot proceeded to negotiate for the purchase of Quality in about November 1984. The parties reached an agreement and signed a written con- tract for a purchase price of $60,000 on 23 November 1984. However, although the written agreement was never consummated by'the parties, Sapot and Arbeitman paid off the capital loan of Sheahan to Commerce Bank, which in turn released Sheahan of all indebtedness. Shea- han thereupon assigned all assets to Arbeitman and Sapot. Neither Teamsters Representative Joggerst nor Machinists Representative Meinell learned about the transfer of assets (ownership) until after it was complet- ed. The transaction was completed on 7 December 1984. Arbeitman and Sapot continued business operations in the same facility under the name of Royal Midtown Chrysler Plymouth, Inc. Just prior to the 7 December 1984 change of owner- ship from Quality Chrysler Plymouth to Royal Midtown Chrysler Plymouth, the Respondent herein , employees in the bargaining units at Quality were as follows: Teamsters Machinists Ronald Payne-Parts Robert Bailey-Mechanic Manager Gerald Agee-Parts Carlo Mazzuca-Mechanic Andrea DiBello- Jere Tyrer-Mechanic Parts Henry Hearns-Porter Gary Follmer-Mechanic William Pinkley- Service Writer ' The facts set forth above are uncontroverted and are not in conflict in the record. ROYAL MIDTOWN CHRYSLER PLYMOUTH Subsequent to the 7 December 1984 transfer of the fixed assets from Quality to Respondent (Royal Midtown Chrysler Plymouth), the co-owners were Sapot , presi- dent, and Arbeitman, vice president . Arbeitman was also the owner of another dealership under the name of the Royal Gate Dodge, of which John Van Hoogstraat was the general manager. Thus, a few days before the trans- fer from Quality to Respondent, Manager Van Hoog- straat interviewed the employees of Quality for employ- ment with the new company, Respondent (Royal Mid- town Chrysler Plymouth). Following the interviewing process by Van Hoogstraat , Respondent immediately or later in December hired former employees of Quality in the bargaining units as follows: Teamsters Unit Ronald Payne-Parts Manager Term- 12-26-84 Donald Miller-Parts Man Hired-2-26-84 Andrea DiBello-Parts 12-26-84 Gerald Agee-Parts Term-3-8-85 Separated-5-31-85 Albert Micks-Parts Hired-1-7-85 Jerry Messicks-Parts Hired-3-18-85 Machinists Unit William Pinkley-Service Writer/Manager Robert Bailey-Mechanic Gary Follmer-Mechanic Jere Tyrer-Mechanic Hired 2-18-85 separated 5-31-85 Carlo Mazzuca-Mechanic Ron Rodash Term 2-15-85 Dave R. Meinell, business representative for the Ma- chinists, went to Quality and spoke with Sheahan after he learned that Quality had been sold. On 9 January 1985, Meinell, and Rod Joggerst, business representative for the Teamsters, went to the Respondent's showroom and asked the receptionist to speak with Arbeitman. She told them he was in a meeting and referred them to the manager across the street. Meinell and Joggerst went across the street and they testified they introduced them- selves to Manager Perniciaro , told them who they repre- sented, and Meinell asked him if he had the authority to negotiate or sign subsequent agreements covering wages, hours, and working conditions. Perniciaro told them he did not, but made a telephone call across the street to Respondent, and then referred them to Arbeitman. Meinell and Joggerst returned across the street to Re- spondent's showroom where they met Arbeitman on the floor, and where they testified they introduced them- selves and told him who they represented . However, Ar- beitman denied that either Meinell or Joggerst intro- duced themselves or told him who they represented. Meinell and Joggerst further testified that Meinell ex- 1045 plained to Arbeitman that the Respondent hired a major- ity of the members in the bargaining unit , and that ac- cording to the law, the Respondent had an obligation to negotiate the terms and conditions of a contract for the respective units. Teamsters Representative Joggerst testi- fied that after he introduced himself and told General Manager Perniciaro and Vice President Arbeitman who he represented, he said Machinists Representative Mein- ell did the rest of the talking, and he corroborated Mein- ell's testimony of the conversations held with the general manager and the vice president, respectively. However, Vice President Arbeitman's version of the conversation differs from that of Meinell and Joggerst in that Arbeitman denied that either Meinell or Joggerst in- troduced themselves or told him who they represented; that both Meinell and Joggerst approached him in a threatening manner talking about negotiating a contract; that he asked them for a copy of the contract and they refused to produce a contract; and that he did not have any idea about a contract to which they were referring. He acknowledged he did ask them to leave the premises and that they did in fact leave the premises. He also tes- tified that he never negotiated or signed a collective-bar- gaining agreement with either the Machinists or the Teamsters. 2 Machinists Business Representative Dave Meinell sent a letter dated 9 January 1985 to the Respondent request- ing it to negotiate a contract on behalf of its Machinists unit employees. The letter also requested bargaining unit information regarding the names, addresses, dates of em- ployment and separation from employment, and rates of pay and classifications of employees in the unit . The in- formation was requested within 10 days from the receipt of the letter which was sent certified mail (G .C. Exh. 5). Respondent did not dispute its receipt of the Machin- ists 9 January letter and it acknowledged it did not re- 2 Having closely observed the demeanor of witnesses Meinell , Joggerst and Arbeitman, and having carefully examined their respective testimoni- al versions in light of all of the credited evidence of record , I am strong- ly persuaded that Arbeitman was not testifying truthfully when he denied that Meinell and Joggerst identified themselves and told him who they represented on 9 January. In order to credit Arbeitman's version, I would have to believe and conclude that Arbeitman, the owner of another deal- ership whose mechanic employees are unionized and hold a contract with him, nevertheless does not understand what kind of contract to which Meinell and Joggerst were referring ; that two experienced union business representatives such as Meinell and Joggerst did not realize they had to identify themselves and state who they represented in order to gain the receptable attention of an employer, and that they even refused to state their names or to tell who they represented when they were asked to do so by Arbeitman. Such a version or conclusion does not coincide with reality. In fact , common experience discredits it Moreover, the rather re- luctant manner in which Arbeitman testified, which is partially reflected on p 198 through 203 of the transcript herein , was far short of convinc- ing that he was telling the truth . On the contrary, I was persuaded that Meinell and Joggerst both identified themselves, told Arbeitman the name of the respective union they represented , and that they neither threatened Arbeitman with physical harm nor gave him any reasonable basis for being apprehensive about his safety, even though their demand for recognition and bargaining might have eventually evolved into a heated exchange. However, that occurred only after Arbeitman manifest- ed an unwillingness to talk with them about recognition or negotiation with respect to the Machinists or Teamsters unit employees I therefore credit the testimony of Meinell and Joggerst and discredit Arbeitman's testimony in this respect. 1046 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD spond to the letter or provided the information request- ed. A letter dated 6 March 1985 (G.C. Exh. 6) was sent to the Machinists on the same date. In substance the letter provided as follows: Dear Sirs, While working at Royal Midtown CP December 13, 1984, to present, I have found that my benefits, working conditions, and safety conditions never im- proved considerably, much better than when I had union representation, while with Quality C.P. My representative did not help at this time and I feel I no longer wish to be represented by I.A.M. Local I therefore respectively request a withdrawal card immediately from I.A.M. Local ??? The letter also stated , "please advise," and was signed William E. Pinkley, Robert E. Bailey, Gary Follmer, and Jere Tyrer, with the postscript: "T.G. Hawkins-em- ployed 2-4-85 to present. I feel no need for union repre- sentation. The working conditions are to my satisfac- tion." In reference to the above letter, Jere Tyrer worked for Quality from November 1982 to December 1984 as a me- chanic with mechanics Gary Follmer, Bob Bailey, Carlo Mazzuca, and Service Writer Bill Pinkley, who was a member of the bargaining unit. When he learned of the contemplated change in ownership of Quality in Decem- ber 1984 he applied for an interview for employment with Respondent. The interview was conducted by John Van Hoogstraat, on behalf of the Respondent. During that interview, Tyrer testified that Manager John Van Hoogstraat told him the new ownership would be non- union and he then terminated his employment with Re- spondent in December 1984. Tyrer further testified that he was hired by Service Manager Pinkley for Respondent on 15 February 1985 until April 24, 1985. In March, Tyrer said Pinkley told him he had retained an attorney to obtain moneys due from Quality for the former unit employees at Quality. Pinkley also told him he wanted the mechanics to get a written withdrawal card from the Union because this was a problem for him (Pinkley), mentioning the Labor Board was on him, and asked him to call the Union and get them. On the next day, Pinkley came in with a docu- ment dated 6 March 1985, which he (Tyrer) signed be- cause all the other employees had signed it and he did not want to be the source of trouble. He stated that Pinkley had told him previously that he was going to prepare something to get something going. Thomas Hawkins testified that he was hired by Pink- ley for the Respondent on 7 February 1985; and at that time Pinkley told him the Respondent was a nonunion shop. Hawkins worked with Bob Bailey, Gary Follmer, and Ron Rodash. He further testified that on 6 March 1985 Pinkley brought the letter (G.C. Exh. 6) to him. He read it, signed it, and Pinkley asked him if there was anything he wanted to add since he was new in the shop. Hawkins said he then added the words following his sig- nature on the letter because he wanted to go with the flow since he was new in the shop. Analysis and Conclusions The crucial issue presented for determination in this case is whether Respondent (Royal Midtown Chrysler Plymouth) is a successor to Quality Chrysler Plymouth, and is thereby legally obligated to bargain with the Ma- chinists and/or the Teamsters, with respect to Respond- ent's mechanic unit and parts and delivery unit employ- ees, respectively. In addressing this question, it is observed that the Board has long held that whether a purchaser, like Re- spondent, is obligated to bargain with the exclusive rep- resentative of the employees of its predecessor, is deter- mined by establishing whether there is substantial conti- nuity in the employing enterprise. Where there is such continuity, the Board says, there is a presumption of ma- jority status by the union under the predecessor, such as established by the collective-bargaining agreements we have here, the bargaining obligation is not affected by the change in ownership. The Board went on to describe the traditional criteria for determining whether there is substantial continuity in the employing enterprise as fol- lows: (1) business operations; (2) plant; (3) work force; (4) jobs and working conditions; (5) supervisors; (6) ma- chinery, equipment, and methods of production; and (7) product or service. Grico Corp., 265 NLRB 1344, 1345 (1982). Successorship Applying these well-established criteria to the uncon- troverted evidence in the instant case, it is noted that: (1) The business operations of Respondent involved a continuation of the same sales and services of new and used Chrysler Plymouth automobiles, as were conducted by Respondent's predecessor, Quality Chrysler Plym- outh; (2) Respondent carries on its business operations in the same facility where Quality Chrysler Plymouth operated the same business located at 4315 Kingshighway, St. Louis, Missouri; (3) the work force at Quality consisted of four persons in the Teamsters unit of the parts department, and four mechanics and one service writer in the Machinists unit of the service department. Respondent immediately hired three of the same Teamsters unit parts employees and four of the same Machinists service department employ- ees. Several weeks later, Respondent employed the fifth Machinists unit employee formerly employed by Quality; (4) after Respondent purchased all of the fixed assets of Quality on 7 December 1984, all of Quality's Team- sters unit parts employees employed by Respondent, per- formed the same work they formerly performed for Quality. Likewise, four of the Machinists unit mechanic employees performed the same job function for Respond- ent that they formerly performed for Quality, and the fifth Machinists unit employee, William Pinkley, who formerly performed the job of service writer for Quality, thereafter performed the job of service writer and serv- ice manager for Respondent. Consequently, it is well es- ROYAL MIDTOWN CHRYSLER PLYMOUTH 1047 tablished by the evidence that Respondent employed a majority of its predecessor's Teamsters unit employees and a majority of its Machinists unit employees subse- quent to its purchase of the assets on 7 December 1984; (5) Teamsters unit employee Ronald Payne served as parts manager while he was employed by Quality, and he served as parts manager when he was employed by Respondent. Payne was therefore a supervisor for both Quality and the Respondent. Although Machinists unit employee William Pinkley served as service writer, under a service manager, when he was employed by Quality, he served as service manager and service writer while working for Respondent , and therefore is a super- visor for the Respondent; (6) the uncontroverted evidence established that Re- spondent purchased the fixed assets of Quality and con- tinued to operate the same sales , parts and service de- partments, utilizing the same fixed assets (machinery and equipment) in continuing the same business operations that were formally conducted by Quality; (7) Quality and Respondent dealt in the same product and service, the sale and service of new and used Chrys- ler and Plymouth automobiles. I therefore conclude and find upon the foregoing cred- ited evidence, that Respondent assumed the same auto- mobile sales and servicing business , at the same location, with essentially the same work force, the same job classi- fications and working conditions, essentially the same su- pervisors, using essentially the same machinery and equipment, and dealing in the same product and service, with many of the same customers as when the enterprise was operated by Quality. I therefore further conclude and find that Respondent is the successor of Quality. Grico Corp., supra; Premium Foods, 260 NLRB 708, 714 (1982); Merchants Home Delivery Service, 230 NLRB 290, 295 (1977). Having found that there is a substantial continuity of the Quality enterprise carried on by the Respondent, it is presumed that both the Machinists unit and the Team- sters unit employees enjoyed a majority status under Quality, as established by the respective collective-bar- gaining agreements, at the time Respondent purchased the fixed assets of Quality on 7 December 1984, and sev- eral weeks thereafter. Merchants Home Delivery Service, supra. Demand for Recognition and Bargaining Based upon the foregoing credited evidence, I find that Machinists Business Representative Meinell and Teamsters Business Representative Joggerst visited Re- spondent on 9 January 1985, introduced themselves to Respondent's vice president, Arbeitman, and told him they represented their respective Unions (Machinists and Teamsters). Although Meinell did the remainder of the talking, by asking Arbeitman to recognize them and ne- gotiate a contract on behalf of Respondent's unit em- ployees, it may be reasonably inferred from the fact that both Meinell and Joggerst were there together for the same purpose, that Meinell 's request for recognition and negotiation was made on behalf of both the Machinists and the Teamsters (Joggerst), in lieu of both of them at- tempting to articulate the same request at one time. Ar- beitman immediately ventilated his frustration by pre- tending he did not understand their request or by not making a reasonable inquiry to - ascertain what they were requesting, and finally by asking them to leave the prem- ises without an honest attempt to learn further details of their visit and request. Under these circumstances, it was not necessary for Teamsters Representative Joggerst to make an additional verbal request to Arbeitman to nego- tiate on behalf of the Teamsters unit employees. The re- quest by Meinell, who was accompanied by Joggerst, who had previously introduced himself and stated whom he represented, was obviously a sufficient communica- tion to Arbeitman that both representatives were request- ing recognition and negotiations for a contract. The evidence is also uncontroverted that when Re- spondent acquired the fixed assets of its predecessor (Quality) on 7 December 1984, Respondent interviewed and thereafter employed three of the four Teamsters unit employees (Payne, DiBello, and Agee) who remained in its employ for several weeks after 7 December 1984. Re- spondent argues, however, that on 9 January, if Meinell and Joggerst requested negotiations with respect to unit predecessor employees, the only one of the three prede- cessor parts employees in Respondent's employ at that time was Gerald Agee . Consequently, Respondent now argues that since it did not have a majority of Teamsters- predecessor employees in its employ on 9 January, Re- spondent was not obligated to recognize and bargain with the Teamsters because the predecessor parts unit employees no longer represented a majority of such em- ployees. In support of its position, the Respondent cites NLRB v. Burns Security Services, 406 U.S. 272 (1972). On the contrary, the General Counsel argues that Re- spondent is nevertheless obligated to bargain with the Teamsters with respect to all parts and delivery employ- ees, because the relevant date for determining whether an alleged successor employer has hired a majority of a predecessor's employees, is the date on which a repre- sentative complement of predecessor employees is em- ployed by the successor. The General Counsel cites Can- terbury Villa, Inc., 271 NLRB 144 fn. 5 (1984), where the Board, pointing out that the Supreme Court affirmed its test in NLRB v. Burns Security Services, supra, stated that, [A] mere change of employers or of ownership in the employing industry is not such an `usual circum- stance' as to affect the force of the Board's certifica- tion within the normal operative period if a majori- ty of employees after the change of ownership or management were employed by the preceding em- ployer [cited cases omitted]. Thus, having found that there was substantial continui- ty in the company in Canterbury Villa, supra, the Board concluded that Canterbury was a successor to its prede- cessor and therefore, had a duty to recognize and bar- gain with the certified collective-bargaining representa- tive of its employees. With respect to a subsequent dimi- nution in the majority employee complement of the suc- cessor, the Board stated in Canterbury, supra at 145 fn. 5 that, "It is well settled that the time frame for determin- ing what percentage of a purchaser's employees are 1048 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD former employees of a predecessor is when a representa- tive complement of an employer's work force is first on the job. Hudson River Aggregates, 246 NLRB 192 (1979)." Here, there is no dispute that a majority of Teamsters unit employees were in Respondent's employ on , and for several weeks after, 7 December 1984, when Respondent commenced business operations as successor to Quality. In view of this explicit evidence and Board law, I con- clude and find that Respondent was obligated to bargain with Charging Party Teamsters , on and subsequent to the change of ownership on 7 December , even though the Teamsters did not request recognition and negotia- tion until 9 January 1985. Hudson River Aggregates, supra. Additionally, the Board has also held that even in the event of a loss of majority of a complement of unit em- ployees after the change of ownership, the remaining unit employees are presumed to support the Union in the same proportion as the original complement employed by the successor, unless such presumption is rebutted by objective considerations. John Ascuago's Nugget, 230 NLRB 275, 286-287 (1977); and Golden State Rehabilita- tion Convalescent Center, 224 NLRB 1618, 1620 (1976), enf. denied on other grounds 566 F.2d 77 (9th Cir. 1977). In the instant case, Respondent did not present any evidence to rebut the presumption of continued support for the Teamsters, prior to the request for recognition and negotiations by the Teamsters and the Machinists on 9 January 1985. Consequently, based upon the foregoing credited evidence and cited cases, I find that both the Machinists and Teamsters represented a majority of the respective unit employees in mid-December 1984, and on 9 January 1985, when the Machinists and Teamsters re- quested recognition and bargaining of the Respondent. Canterbury Villa, supra; NLRB v. Burns Security, supra; and Hudson River Aggregates, supra. Since the Machin- ists' 9 December 1985 request, Respondent has failed and refused to recognize or bargain with either the Machin- ists or the Teamsters, in violation of Section 8(a)(1) and (5) of the Act. NLRB v. Burns Security, supra. It is undisputed that a majority of predecessor Machin- ists unit employees were in Respondent's employ when the Machinists made its request for recognition and bar- gaining on 9 January. Machinists' Request for Information It is well established by the evidence and Respondent's admission, that it received the Machinists' 9 January 1985 letter, requesting negotiations and information con- cerning the names, dates of employment and separation, and rates of pay and classifications of Machinists unit employees; and that Respondent has failed to respond to the written request, as well as failed and refused to pro- vide the requested information. It has been long settled that an employer has a duty under the Act to supply, upon request, such information which is probably relevant, in fact relevant, necessary and useful to a union's effective and intelligent evalua- tion in determining whether to process employee griev- ances, or to negotiate on behalf of employees. NLRB v. Acme Industrial Co., 385 U.S. 432, 438 (1967). In the in- stant case, since the subject of the information requested appears relevant to the Unions' interest in having such data on its unit employees for purposes of determining the identity of its members, or prospective members, or collecting their dues, the request appears to be at least probably relevant and not unreasonable. The above conclusion is further supported by Board law, that information such as that requested by the Ma- chinists here, is presumptively relevant. Monsanto Co., 268 NLRB 1381 (1984). Respondent did not present any evidence in rebuttal to the presumption of relevancy, and I find that the presumption is not rebutted. Accordingly, Respondent's failure and refusal to provide the informa- tion requested by the Machinists constitutes a failure and refusal to bargain in good faith with the exclusive collec- tive-bargaining representative of its Machinists unit em- ployees, in violation of Section 8(a)(1) and (5) of the Act. NLRB v. Acme Industrial Co., supra; Monsanto Co., supra. Coercive Action by Respondent's Agent The credited evidence of record also established that on or about 7 December 1984, John Van Hoogstraat (John Van), manager of Respondent's Dodge dealership, pursuant to Respondent's authority, interviewed employ- ees of Quality for employment with Respondent , includ- ing mechanic employee Jere Tyrer. During the inter- view, Tyrer testified that Van Hoogstraat told him the new ownership would be nonunion. Mechanic Thomas Hawkins testified that he was interviewed for employ- ment and subsequently hired by Service Manager Wil- liam Pinkley in late January or early February 1985. Hawkins further testified that during his interview Pink- ley told him Respondent was nonunion. Van Hoogstraat testified that during his interview with the employees on 7 December 1984, he' was aware that Quality employees had a contract with and were represented by a union, be- cause several of the employees asked him if the new company had a union. Van Hoogstraat did not state whether or not he answered the employees ' question, but notably he did not deny the prior testimony of Tyrer or Hawkins that he told them Respondent was nonunion. I therefore credit Tyrer's and Hawkins' testimony and find that Van Hoogstraat told Tyrer and Houston that Re- spondent would be or was already nonunion. Since Van Hoogstraat was admittedly a manager of one of Respondent's other automobile dealerships, and pursuant to directions of Respondent interviewed em- ployees of predecessor Quality for employment on behalf of Respondent, Van Hoogstraat had actual and apparent authority to act as agent, and was in fact an agent of Re- spondent, to interview and hire the employees . Gourmet Foods, 270 NLRB 578 (1984); and Bio-Medical of Puerto Rico, 269 NLRB 827 (1984). Thus, in his capacity as interviewing and hiring agent for Respondent, Van Hoogstraat's statement to employees Tyrer and Hawkins, that Respondent's operation was or would be a nonunion shop, is probative evidence that Respondent did not intend to recognize or bargain with the Machinists or Teamsters Union as representatives of the newly hired unit employees. This conclusion is further supported by the fact that Respondent, upon request, refused to recog- nize or bargain with the Machinists or the Teamsters as ROYAL MIDTOWN CHRYSLER PLYMOUTH representatives of its respective mechanic unit and parts unit employees. I therefore find that Van Hoogstraat 's announcement to the employees that Respondent would not be a union shop tended to interfere with, restrain, and coerce Re- spondent's employees in the exercise of their right to have or organize a union to represent them . Such an an- nouncement constituted a violation of Section 8(a)(1) of the Act. Lawson Co., 267 NLRB 463 (1983). Efforts to Have Employees Withdraw from the Union Jere Tyrer further testified he was hired by Respond- ent's service manager, William Pinkley, on 15 February 1985. In early March, Pinkley told him he "wanted the mechanics to secure a withdrawal card from the Union because this was a problem for him, mentioning the Labor Board was on him ...." Pinkley added he was going to prepare something to get something started. On the next morning, Pinkley brought a letter dated 6 March 1985 , signed by himself, William Pinkley (G.C. Exh. 6), which expressed satisfaction with benefits, safety and working conditions at the Respondent, which were better than conditions under union representation at predecessor Quality; and that since union representation did not prove helpful at that time he no longer wished to be represented by the Machinists, and therefore request- ed immediate withdrawal from the Machinists. Since the letter was already signed by machinists Robert Bailey, Gary Follmer, and T. G. Hawkins, Jere Tyrer testified that he signed the letter because he did not want to be a source of trouble. Hawkins testified that Pinkley presented him with the letter on March 6 and asked him if he wanted to add anything since he was new in the shop. Hawkins said to go along with the flow, he signed and added a postscript of his satisfaction in working for the Respondent . The letter was sent to the Machinists. According to Pinkley's testimony, Bailey, Follmer, and himself had expressed concern as early as December 1984 about the Union not assisting them in getting their last pay from Quality. Between 23 December 1984 and January 1985, Pinkley said discussions between himself, Bailey, Follmer and the new employee Rodash estab- lished they were also satisfied that they could get parts, wherein they could not get parts and equipment at Qual- ity; that they had Blue Cross-Blue Shield, a $15,000 life insurance policy, were offered profit sharing, and these were benefits they did not have at Quality. He said this view represented a consensus of the mechanics, with the exception of Jere Tyrer, who was not present. In early March they tried to get a withdrawal card from the Union but the Union refused to grant it. Pinkley said fi- nally Bailey suggested he (Pinkley) prepare a letter re- questing a withdrawal card on behalf of them (Bailey and Follmer). Pinkley further testified that around the first of the year (1985) Arbeitman asked him how the employees felt about the Union. He said he told Arbeitman, "Well, basi- cally nobody really cares," meaning Bailey and Follmer. On cross-examination Pinkley said he knew he was ex- cluded from the bargaining unit since he was Respond- 1049 ent's service manager. Although he said Bailey told him in December he did not care whether or not they had a union, he acknowledged on cross-examination that Bailey never told him he (Bailey) did not want the Union. After evaluating the testimonial versions of employees Jere Tyrer and T. G. Hawkins, as opposed to the ver- sions of Service Manager William Pinkley and employee Robert Bailey, I credit Tyrer and Hawkins' version over those of Pinkley and Bailey for the following reasons: It is quite clear from the testimony that neither Tyrer, Hawkins nor Bailey asked Pinkley to prepare the 6 March letter (G.C. Exh. 6) requesting a withdrawal card or withdrawal from the Union. At most, Bailey said he and Pinkley agreed to put a request for withdrawal in writing but the evidence does not indicate they agreed when that should be done. Bailey said Gary Follmer was not present when he agreed with Pinkley that such a re- quest should be put in writing, and Follmer did not testi- fy in this proceeding. Hawkins and Tyrer did not author- ize the preparation of the letter . They saw the letter for the first time on the morning of 6 March after it had been signed by Pinkley , Bailey, and Follmer. Therefore, Pinkley's testimony that the mechanic employees agreed to withdraw from the Union and requested him to pre- pare such a letter is not corroborated by testimony of any employees, including Bailey. On the contrary, Tyrer and Hawkins affirmatively tes- tified that they had not participated in any discussion or agreement to withdraw from the Union . Instead, the evi- dence shows that Pinkley presented the letter to Haw- kins and asked him if he wanted to add anything. Tyrer signed because the letter was already signed by Manager Pinkley and two of his coworkers, Bailey and Follmer, both of whom were his coworkers at predecessor Qual- ity. Under these circumstances, I find that Manager Pinkley initiated the idea of obtaining a withdrawal card or withdrawing from the Union , the idea of making such a request in writing, he prepared the letter requesting withdrawal, and he solicited the concurrence and/or the signatures of the signatory employees. Since Pinkley was service manager and an acknowl- edged supervisor for Respondent, his initiative and mana- gerial influence is obviously manifested by the manner in which the signatures of the employees, and especially those of Tyrer and Hawkins were secured. Tyrer and Hawkins testified they signed because they would have been uncomfortable and apprehensive if they dissented or refused to sign. Moreover, it may be reasonably inferred from the conditions under which Tyrer and Hawkins signed the letter, that Follmer, who did not testify, also signed because he was influenced to do so by the mana- gerial influence and leadership efforts of Manager Pink- ley. It is therefore clear, and I find that the signing of the letter by all of the employees here can hardly be characterized as having been obtained voluntarily, inde- pendent of managerial influence. In fact, Manager Pink- ley's supervisory influence (suggesting withdrawal, pre- paring the letter requesting withdrawal, and soliciting signatories to it) is self-evident of Respondent's interfer- ence, coercion, and restraint upon the free exercise of the employees' Section 7 rights, in violation of Section 1050 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8(a)(1) of the Act. Frontier Dodge, 277 NLRB 1242, 1243 (1985). THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I will recommend that it be or- dered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent violated Section 8(a)(1) and (5) of the Act by unlawfully failing and refusing to recognize and bargain with Charging Parties Machinists Union and Teamsters Union as the exclusive collective- bargaining representatives of its employees in the appro- priate Machinists unit and Teamsters unit, respectively; that Respondent violated Section 8(a)(1) and (5) of the Act, by failing and refusing to furnish relevant informa- tion requested by the Machinists Union; and that Re- spondent violated Section 8(a)(1) of the Act, by request- ing, urging, and assisting Machinists unit employees to request a withdrawal card or withdrawal from Charging Party Machinists Union, I will recommend that Re- spondent cease and desist from engaging in such con- duct; that it be ordered to recognize and, upon request, bargain in good faith with Charging Party Machinists and Charging Party Teamsters Unions as the exclusive collective-bargaining representatives of its employees in the respective appropriate units; and that it furnish the information requested by the Machinists Union. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Charging Party Machinists Union is a labor organi- zation within the meaning of Section 2(5) of the Act. 3. Charging Party Teamsters Union is a labor organi- zation within the meaning of Section 2(5) of the Act. 4. By unlawfully failing and refusing to recognize and bargain with Charging Party Machinists Union, Re- spondent violated Section 8(a)(1) and (5) of the Act. 5. By unlawfully failing and refusing to recognize and bargain with Charging Party Teamsters Union, Respond- ent violated Section 8(a)(1) and (5) of the Act. 6. By unlawfully failing and refusing to furnish infor- mation requested by Charging Party Machinists Union, Respondent violated Section 8(a)(1) and (5) of the Act. 7. By unlawfully requesting, urging and assisting Ma- chinists unit employees to request a withdrawal card or withdrawal from Charging Party Machinists Union, Re- spondent violated Section 8(a)(1) of the Act. 8. All of the below-described employees employed by Respondent in its service department , constitute an ap- propriate unit for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All journeymen automobile and truck mechanics, machinists, electrical machinists, welders, trimmers, metal men, fender, body painters, radiator repair- men, refrigeration, automotive air conditioning me- chanics, inspectors, glass installers, service salesmen and towermen, apprentices, and working foremen, and specialists employed by Quality at its St. Louis, Missouri facility EXCLUDING office clerical and professional employees, guards, and supervisors as defined in the Act. 9. All of the below-described employees employed by Respondent in its parts and delivery department , consti- tute an appropriate unit for purposes of collective bar- gaining within the meaning of Section 9(b) of the Act: All parts managers, counterpersons,'parts depart- ment employees, lubrication men, heavy truck driv- ers, undercoat men, tire and battery department em- ployees, auto top installers, pressure type washers, polishers, new car clean-up employees, utility men, seat cover employees, paint shop helpers, motor riders, pickup and delivery and car jockeys, used car clean-up employees, porters, sweepers, and utili- ty shop employees employed by Quality at its St. Louis, Missouri facility EXCLUDING office cleri- cal and professional employees , guards, and supervi- sors as defined in the Act. 10. At all times material herein, the Charging Party Unions have been the exclusive collective-bargaining representative of the employees in the aforedescribed ap- propriate units within the meaning of Section 9(a) of the Act. [Recommended Order omitted from publication.] Michael T. Jamison, Esq., for the General Counsel. Michael E. Kaemmerer, Esq. (Buechner, McCarthy, Leon- ard, Kaemmerer, Guest & Owen), of St. Louis, Missou- ri, for the Respondent. Nancy M. Watkins, Esq. (Wiley, Craig, Armbruster & Wil- burn), of St. Louis, Missouri, for Teamsters Local 618. SUPPLEMENTAL DECISION STATEMENT OF THE CASE ELBERT D. GADSDEN, Administrative Law Judge. On 2 April 1986, the Board remanded the 12 August 1985 above-captioned decision of the administrative Law judge, for further consideration of certain below-de- scribed 8(a)(1) and (5) allegations in the amended com- plaint; and that the judge, based upon evidence in the record, issue a Supplemental Decision and Order within 30 days of his receipt of its remand Order . The Board deferred considering the remaining allegations of the complaint, pending the judge's issuance of a Supplemen- tal Decision and recommended Order. 1. Specifically, the Board correctly noted that the complaint alleged and mechanic employee Jere Tyrer testified that during an employment interview in early December 1984, Respondent's general manager, John Van Hoogstraat, told him successor Respondent (Royal Midtown) would operate nonunion ; that the judge found Van Hoogstraat's statement violated Section 8(a)(1) of the Act because Van Hoogstraat did not deny he made the statement, although the record shows Van Hoog- straat testified he did not tell any of the persons he inter- viewed on 7 December, that Respondent would not be a union shop; and that since the judge failed to credit or ROYAL MIDTOWN CHRYSLER PLYMOUTH reject Van Hoogstraat's testimony, the case is remanded to him to resolve the conflicting testimonial accounts, and determine under the credited testimony, whether Re- spondent violated Section 8(a)(1) of the Act. 2. The Board further correctly noted that the amended complaint alleged that Respondent failed and refused to recognize and bargain with the Machinists Union, in vio- lation of Section 8(a)(5) of the Act; that the judge found that the Respondent, a successor employer, had a duty to bargain with the Machinists Union because a majority of its predecessor Machinists unit employees were em- ployed by Respondent when the Machinists Union re- quested recognition and bargaining on 9 January 1985; and that although Respondent had acknowledged that it employed a majority of predecessor Machinists unit em- ployees on 9 January, it affirmatively alleged in its answer that it was not obligated to recognize and bar- gain with the Machinists Union. Respondent articulated this defense in its opening statement at the hearing, adding at that time, and in its posthearing brief, that Re- spondent had a good-faith doubt that a majority of Ma- chinists unit employees supported the Machinists Union, but the judge failed to address this defense in his deci- sion. In complying with the Board's Order to address these issues, I have reviewed my decision, the record in this proceeding, the posthearing briefs submitted by the re- spective parties, and now include the following written credibility resolutions and findings, inadvertently omitted in my original decision, in this supplemental decision. A. Respondent 's Successorship Obligation to Bargain The uncontroverted record evidence shows that imme- diately prior to the 7 December 1984 change of owner- ship from Quality Chrysler Plymouth to Respondent (Royal Midtown Chrysler Plymouth), employees in the respective bargaining units and classifications at Quality were as follows: Teamsters Ronald Payne-Parts Manager Gerald Agee-Parts Andrea DiBello-Parts Henry Hearns-Porter Machinists Robert Bailey-Mechanic Carlo Mazzuca-Mechanic Jere Tyrer-Mechanic Gary Follmer-Mechanic William Pinkley-Service Writer Following the 7 December 1984 interviewing process by Van Hoogstraat, Respondent immediately or later in December hired former employees of Quality in the bar- gaining units on the dates indicated under their respec- tive names as follows: Teamsters Unit Gerald Agee Hired 12-14-84 Terminated 3-8-85 Andrea DiBello Hired 12-7-84 Terminated 12-26-84 Ronald Payne Hired 12-7-84 Terminated 12-26-84 Machinists Unit Robert Bailey Hired 12-13-84 Gary Follmer Hired 12-13-84 Carlo Mazzuca Hired 12-13-84 Terminated 2-7-85 William Pinkley Hired 12-10-84 1051 Respondent immediately commenced business oper- ations as Royal Midtown Chrysler Plymouth with four (Bailey, Follmer, Muzzuca, and Pinkley) of the five predecessor Machinists unit employees in its employ. It had one Teamsters unit employee (DiBello) in its employ, and 1 week later, 14 December 1984, it had three of the four predecessor Teamsters unit employees (Payne, DiBello, and Agee) in its employ. Consequently, by 15 December 1984, Respondent had a majority of both predecessor Teamsters unit and Machinists unit em- ployees in its employ. B. The Majority Status of the Teamsters Unit The General Counsel argues that Respondent is obli- gated to bargain with the Teamsters Union on behalf of the parts unit, because the relevant date for determining whether an alleged successor employer has hired a ma- jority of a predecessor's employees, is the date on which a representative complement of predecessor employees is on the job. In support of this position the General Coun- sel cites Canterbury Villa, Inc., 271 NLRB 144 fn. 5 (1984), where the Board noted that the Supreme Court affirmed its test in NLRB v. Burns Security Services, 406 U.S. 272 (1972). However, in the instant case, no demand for recognition and bargaining had been made upon Re- spondent by either union representative in December 1984. The employment of Teamsters unit parts employ- ees DiBello and Payne was terminated with Respondent on 26 December 1984, and Respondent thereafter had only one Teamsters unit employee (Agee) left in its parts unit. Counsel for Respondent argues that since the employ- ment of Teamsters parts employees DiBello and Payne was terminated on 26 December 1984, only parts em- ployee Agee was working for Respondent on 9 January 1985, when Teamsters Representative Joggerst accompa- nied Machinists Representative Meinell to the Respond- ent and requested recognition and bargaining. The General Counsel, however, argues that this change in the Teamsters complement is immaterial, be- cause the Board had held that even in the event of loss of majority of a complement of unit employees after a change of ownership, the remaining unit is presumed to support the Union in the same proportion as the original complement employed by the successor, unless such pre- 1052 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sumption is rebutted by objective considerations. John Ascuago's Nugget, 230 NLRB 275, 286-287 (1977); Golden State Rehabilitation Convalescent Center, 224 NLRB 1618, 1620 (1976), enf. denied on other grounds 566 F.2d 77 (9th Cir. 1977). With respect to a subsequent diminution in the majori- ty employees complement of the successor, the General Counsel further argues that the Board stated in footnote 5, page 5, that, "it is well settled that the timeframe for determining what percentage of the purchased employ- ees are former employees of predecessor is when a repre- sentative complement of the employer's work force is on the job." Hudson River Aggregates, 346 NLRB 192 (1979). Here, there is no dispute that a majority of Teamsters unit employees were in Respondent's employ on and for several weeks after 7 December 1984, while Respondent continued business operations as successor to Quality. In an effort to rebut the presumption of Teamsters unit's continued majority and refute the General Coun- sel's advocated time for determining majority status, Re- spondent denies that the Teamsters Union requested rec- ognition and bargaining. It also argues and advocates a different time for determining Teamsters unit's majority status. Arbeitman testified that Teamsters Representative Jog- gerst did not request recognition and bargaining when he accompanied Machinists Representative Meinell to Re- spondent's showroom on 9 January. However, I previ- ously found that both union representatives introduced themselves and told Arbeitman the names of the respec- tive unions each represented. Machinists Representative Meinell then requested recognition and bargaining and Arbeitman became angry and ordered them to leave the premises before either representative could say more. Under these circumstances , I found that Joggerst also re- quested recognition and bargaining because Arbeitman obviously understood the purpose of his presence, and he made both representatives feel that any further request for recognition and bargaining would be futile. Without conceding Teamsters Representative Jog- gerst's requested bargaining when he accompanied Ma- chinists Representative Meinell to the Respondent on 9 January, Respondent argues that the time for determin- ing when a majority exists is "when demand for bargain- ing had been made and a representative complement is on the job." Indianapolis Mack Truck Sales, 272 NLRB 690 (1984); Grico Corp., 265 NLRB 192 (1979). Under these authorities, Respondent argues, that Respondent was not a successor of the Teamsters parts unit employ- ees because Gerald Agee was the only parts unit employ- ee in Respondent's employ on 9 January. The evidence shows that Agee was in fact the only parts employee in Respondent's employ since 27 December 1984. As such, Respondent argues that the parts unit did not constitute a representative complement of predecessor employees even if the Teamsters had in fact requested bargaining on 9 January. The cases cited by counsel for Respondent are correct, and in fact, more recently, in Eastone of Ohio, Inc., 277 NLRB 1652 (1986), the Board explicitly stated: A successor employer . . . is obligated to bargain with the exclusive bargaining representative of the employees acquired from the predecessor unless it demonstrates either that the representative no longer enjoyed majority support on the date of its refusal to bargain or that it had a good -faith doubt of the representatives' continued majority support. Conclusions In the instant case, it was not established that the dimi- nution and the size of the Teamsters parts unit was the result of any unfair labor practice committed by the Re- spondent . It was established by the testimony of Re- spondent's interviewing agent, Van Hoogstraat, that predecessor employees, including employee Tyrer, told him during their interview that they were represented by a union. I find that the latter communication by the em- ployees to Van Hoogstraat constituted knowledge suffi- cient, not only to apprise Van Hoogstraat of such fact, but also to put him on reasonable inquiry of any specifics about the representative status of all of the newly hired predecessor employees. It matters not that Van Hoog- straat might not have communicated to Respondent's management what the interviewed employees told him about their representative status, since Van Hoogstraat was Respondent's agent, acting on its behalf. Knowledge of Van Hoogstraat is imputed to Respondent under these circumstances. The evidence is uncontroverted that Respondent hired a majority of predecessor Teamsters unit employees on 14 December 1984. Thus, it necessarily follows that the successorship of the bargaining obligation flowed from the predecessor's recognition of the multiemployer bar- gaining relationship with the Teamsters unit. And that bargaining obligation is binding on the Respondent. Zims Food Liner, Inc., 495 F.2d 1131, 1142 (1974). This is so even though Respondent purchased only a part of the Teamsters' bargaining unit which included employees of other employers. White- Westinghouse Corp., supra; Miles & Sons Trucking Service, supra. Nor does the diminution in the Teamsters' parts unit from three to one parts employees relieve Respondent of its successor obligation to bargain with the Teamsters Union. Respondent is still obligated to bargain with the Union because such diminution does not appear, and it had not been shown that the diminution had significantly affected employee attitude . White- Westinghouse Corp., supra; Boston-Needham Industrial Cleaning, Inc., 216 NLRB 26, 28 (1975). Moreover, it is noted that Respond- ent initially employed three predecessor parts employees in December 1984. Two of those employees (Miller and Payne) were terminated 26 December 1984. Neverthe- less, Respondent subsequently employed parts employee Albert Mick on 7 January 1985. The employment of Mick appears to indicate that the diminution in the unit was temporary, rather than permanent. The Board has held that the burden of proving reduc- tion in the bargaining unit was not a temporary reduc- tion, but permanent in character, is on the Respondent. Emco Steel, Inc., 227 NLRB 989 (1977). Respondent in the instant case has not presented any evidence to estab- ROYAL MIDTOWN CHRYSLER PLYMOUTH lish that diminution in the parts unit is not temporary. The fact that Respondent hired Mick on 7 January 1985, indicates such diminution was not permanent. I therefore conclude and find , consistent with the evidence , that the reduction in Respondent's parts unit in December 1984 and January 1985, was only temporary and not perma- nent. Emco Steel, Inc., supra. Based on the foregoing credited evidence and cited legal authority, I find that Respondent successor's obliga- tion to bargain with the Teamsters Union on behalf of its parts unit employees, arose when it hired a majority of the predecessor employees who were a part of a unit covered by a multiemployer bargaining relationship. Consequently, when Respondent, pursuant to the Team- sters Union's 9 January request, thereafter refused to rec- ognize and bargain with the Union , Respondent violated Section 8(a)(5) of the Act. In its answer to the complaint, Respondent affirmative- ly denied that it is obligated to bargain with the Team- sters Union, but it did not state why it was not so obli- gated. Nor did Respondent state during the proceeding that it had a good-faith doubt of the continued majority status of the Teamsters unit, as it asserted it had with re- spect to the Machinists unit . Notwithstanding, at the conclusion of my evaluation of Respondent's good-faith doubt of the Machinists' majority status, I will also de- termine whether Respondent had such a doubt with re- spect to the Teamsters unit. C. Respondent's Contended Good faith Doubt of Machinists ' Continued Majority Machinists Union in December and January Respondent concedes that the predecessor Machinists unit employees represented a majority when Respondent commenced operations and also on 9 January, when the Machinists Union requested bargaining . It contends, however, that Respondent lawfully refused to bargain with the Machinists and refused to furnish it with re- quested information , based upon a good-faith doubt that the Union continued to request a majority of the Ma- chinists unit. In support of its contention, Respondent presented tes- timony of mechanic Robert Bailey and acknowledged former Quality's service-writer advisor, now Respond- ent's service manager, William Pinkley, who had testified in this proceeding. Bailey testified that early in December 1984, while working for Quality, he recalled having discussions with Service-Advisor Pinkley about working without a con- tract or in a nonunion shop, and he told Pinkley it would probably be all right if benefits and wages were similar. He said that conversation arose after they heard Quality was going out of business and they were speculating about a new ownership-whether it would be union or nonunion. After the change of ownership in late December or early January, he recalled teling Pinkley he thought working conditions at Respondent were better. The shop was cleaner and they had a little more equipment. He said these discussions were of a general nature and were initiated either by himself or Pinkley . At that time, he 1053 said they felt all right without a union and did not see any reason for having one. Respondent's service manager, William Pinkley, cor- roborates Bailey's testimony and further testified that Shop Steward Jere Tyrer called the Machinists Union on the day before the change of ownership, and Meinell came to the shop on 7 December. After the mechanics were interviewed, Meinell bought them a drink and told them to go to work, that he would take care of the union matter. Meinell and mechanic Mazzuca left shortly thereafter, and Pinkley, Bailey, and Follmer remained and discussed the benefits offered by the Respondent. During their discussion, Bailey said Follmer, who did not testify in this proceeding , made the comment that with the kinds of benefits offered by the Respondent, they did not need a union, and he questioned why they should pay union dues . Pinkley also said during the Christmas party, Arbeitman asked him how the employ- ees felt about the Union . He said he told him basically nobody really cares; that on the day before the change of ownership, they asked the Union to come out and help them but the Union did not show up until the next day. Manager Pinkley further testified more extensively about the employees feelings that the Union was not in- terested in helping them the day before they lost their jobs and it failed to secure them jobs in a union shop. He said after the mechanics reported to work at Respondent, he, Bailey, Follmer and Mazzuca talked about getting a withdrawal card from the Union. They talked about trying to collect their last week's pay from Quality. When they would call Mike, he would tell them the checks are in, that the Union had the money covered and would bring it dyer, but the Union would not show up. Pinkley said Bailey and Follmer talked about retain- ing an attorney to secure their pay and he (Pinkley) sug- gested that they all retain the same lawyer to reduce the cost. They did retain an attorney on the recommendation of Pinkley but they had not received any money as of the date of this proceeding. With respect to the attitude of the mechanics towards the Union, Pinkley testified that between 1 and 10 Janu- ary 1985, the mechanics engaged in discussions about the Union. When he was asked what was said, he said, specifically, I couldn't tell you, but basically every- body felt the same way. The business was going well, we had came from a point where we weren't having to beg for funds and this and that. We had money, we could do what we wanted to. We had a policy in our hand for $15,000 of life insurance, we had cards for Blue Cross Blue-Shield. We had a profit sharing that they were offering us. We could put up any amount we want... . The mechanics wondered if the Union was going to col- lect their money and they knew the union dues and the union pension and welfare had never been paid . Pinkley said Bailey, Follmer, and himself felt that the Union would be a problem and he reported their sentiments.to Arbeitman. 1054 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD It is particularly noted, however, that Bailey testified that he had no problem with the Union before or after the change of ownership and Follmer did not testify in this proceeding. On cross-examination Pinkley admitted he was service writer and service advisor for predecessor Quality, and that he is presently service manager performing both service manager and service writer functions . He also ac- knowledged that he was aware when he was hired by the Respondent, that as service manager, he is in a classi- fication excluded from the Machinists' bargaining unit. When Pinkley was asked whether mechanic Bailey ever told him he did not want a union , Pinkley said yes and in so many words he did not really care if he had a union or not. Finally Pinkley said he could not ever recall Bailey expressly saying he did not want a union. When Pinkley was asked what did he report to Arbeitman about the employees' sentiments about the Union, Pink- ley said he told Arbeitman that there was a 75-percent consensus of the employees that they did not want the Union, that they did not care if they had a union because the benefits and everything were over and above what they were getting as a union member. Conclusion In evaluating the testimony of Machinists unit employ- ees'with respect to their sentiments about the Union, it is first noted that only two unit employees testified on the subject. They were mechanic Robert Bailey and Service Manager William Pinkley. Manager Pinkley testified that during the 1985 Christmas party, Respondent's vice president, Arbeitman, asked him how the employees felt about the Union and he replied the employees did not care because they did not feel the Union helped them during the change of ownership; and that there was a 75- percent consensus not wanting the Union . While I credit Manager Pinkley's testimony regarding his conversation with Vice President Arbeitman, I do not credit the au- thenticity of Pinkley's reports to Arbeitman about the union sentiments of unit employees , for the following reasons. Although both witnesses testified they talked to each other about the Union, it is particularly noted that Bai- ley's testimony in this regard is rather general and equiv- ocal, very short in duration, and exclusively confined to conversations he had only with Manager Pinkley. On the contrary, Manager Pinkley's testimony about such con- versations is quite specific, of extensive duration, and al- legedly carried on not only with mechanic Bailey, but also with mechanics Carlo Mazzuca and Gary Follmer. However, the record shows that neither Follmer nor Mazzuca appeared and testified in this proceeding, and statements attributed to them by Manager Pinkley are not corroborated or substantiated in the record. It is further noted that Bailey's limited conversations with Pinkley amounted to speculation about how they thought it would be all right working without a contract in a nonunion shop. Bailey could not recall whether he or Pinkley elicited this hypothetical sentiment but he ac- knowledged telling Pinkley the working conditions were better with Respondent then with Quality, and he agreed with Pinkley that he did not see any reason for having a union. Again, Bailey could not recall which of them (he or Pinkley) induced this hypothetical response. Although Pinkley testified it was the consensus among unit em- ployees that they did not need or want the Union, Bailey denied he ever told Pinkley he did not want the Union. On cross-examination Pinkley acknowledged Bailey never made such a categorical statement but simply said he did not care whether or not they had a union . In fact, Bailey stated without equivocation that he did not have a problem wth the Union either before or subsequent to the change of ownership from predecessor to Respond- ent. Follmer and Mazzuca did not testify and were not available to deny or affirm the union sentiments attrib- uted to them by Manager Pinkley. While Bailey's testimony about his union sentiments may appear somewhat negative, indifferent, and equivo- cal, I am not persuaded that any of his statements to Pinkley reflected his true sentiments . It is undoubtedly clear from the uncontroverted testimony of Pinkley that he is manager of the service department , and as such, was the leader instigating, articulating, and transmitting to higher management, unsupported and even erroneous antiunion sentiments attributed to union employees (Follmer and Mazzuca). With such unlawful antiunion instigation by Manager Pinkley , it is understandable why Bailey's testimony is limited and equivocal . In all reason- able probability, Bailey was, as witness Hawkins ex- pressed it, "going with the flow" of Service Manager Pinkley. Bailey must have assumed it risky to do other- wise. Consequently, while I credit the positive denials of Bailey, I do not construe his slightly indifferent , equivo- cal, and general statements to Manager Pinkley as stating he did not want the Union. It is quite clear from the evidence of the very active and aggressive efforts of Pinkley, that he was subtly using his managerial influence to encourage unit employ- ees to abandon the Union. Bailey's testimony about his union sentiments is very limited, guarded and, at most, equivocal . The record does not contain any other evi- dence independent of Pinkley's testimony, that other unit employees did not desire the continued representation of the Union. If the testimony of Bailey did not establish an unequivocal antiunion sentiment , I am not persuaded that Mazzuca and Follmer would have expressed antiunion sentiments even if they had appeared and testified in this proceeding. This conclusion is especially true when Pinkley's efforts to undermine the Union is considered along with the union curiosity expressed by Arbeitman at the Christmas party, and Pinkley's response to him. Although it may be argued that Arbeitman was rely- ing upon Pinkley's reports to him, the evidence does not show that Arbeitman received complaints about the Union from any source other than his service manager, Pinkley. In his brief, counsel for Respondent raises some question about the supervisory status of Pinkley . Howev- er, I do not see Pinkley's status as an issue in this pro- ceeding. Pinkley acknowledged he is and has been serv- ice manager of the Respondent since the change of own- ership, and unit employees confirmed his testimony in this regard . Moreover, the uncontroverted evidence es- tablished that Manager Pinkley hired mechanic Thomas ROYAL MIDTOWN CHRYSLER PLYMOUTH 1055 Hawkins in early February, and he hired mechanic Jere Tyrer in about mid-February. Pinkley runs the service department and it was not shown that he shares that au- thority with anyone else . Thus, I find that Pinkley was a supervisor within the meaning of Section 2(11) of the Act. As manager of the service department, Pinkley is management, and as such, he not only instigated, but en- couraged unit employees to abandon the Union. I further find that Manager Pinkley is a member of the Machinists unit as he was for predecessor Quality, and that the unit is not less appropriate because he is includ- ed in the unit, since it is not unusual for service depart- ments to be so constituted in the automobile service in- dustry . it is therefore clear from the evidence that Re- spondent did not have a doubt of the continued majority status of the Machinists Union. However, if Respondent had any doubt, certainly this record makes it clear that such doubt was not a good -faith doubt of the continued majority status of the Machinists or the Teamsters Union. Based on the foregoing evidence and findings under topics B and C, I further find that by failing and refusing to recognize and bargain with the Machinists Union and the Teamsters Union, Respondent violated Section 8(a)(5) and (1) of the Act. D. Respondent Told an Employee it Would Operate as a Nonunion Shop The record shows without dispute, that John Van Hoogstraat is general manager of Royal Gate Dodge, in which Respondent's vice president, Harold Arbeitman, has an ownership interest . On 6 December 1984, Quality machinists unit and parts unit employees were advised by Quality that they could avail themselves of an interview for employment with Respondent (Royal Midtown Chrysler) on the next day (7 December 1984). On 7 De- cember 1984, Van Hoogstraat, on behalf of Respondent, interviewed 20 or 21 Quality employees, including Ma- chinists unit employee Jere Tyrer. Mechanic Tyrer testified that during his interview by Van Hoogstraat on 7 December, Van Hoogstraat told him the new "employment would be a nonunion shop" but that Respondent offered everything comparable to the union contract, except birthdays. Van Hoogstraat denied he told any of the applicants he interviewed that Respondent would not be a nonunion shop. However, he acknowledged that some or one of the mechanics told him during the interview, that the employees had a union contract but he said he did not relate that informa- tion to Respondent's vice president, Arbeitman. The lit- eral affirmative testimonial statement by Tyrer and the literal testimonial denial by Van Hoogstraat, give the ap- pearance of an equivocal and genuine conflict in testimo- ny, which questions honest credibility resolution. How- ever, when both testimonial versions are considered in the context of all of the credited record evidence, and the demeanor of each witness, it becomes clear that Tyrer was testifying truthfully and Van Hoogstraat was not. A review of the record evidence shows that although employees told Van Hoogstraat during the interview that they had a union, he made no further inquiry or com- ment, and said he did not mention it to Vice President Arbeitman. At this juncture, Van Hoogstraat' s testimony may be considered believable, even if naively so. How- ever, when further considered in conjunction with Re- spondent's conduct immediately after the change of own- ership, it becomes even less convincing . Specifically, in December and early January, Respondent admitted Serv- ice Manager William Pinkley engaged in conversations with unit employees about how they felt about the Union. During the Christmas party, Respondent's vice president, Arbeitman, asked Respondent's service manag- er, Pinkley, how the employees felt about the Union. Manager Pinkley told him "basically nobody really cares," the Union has failed to help them. Such curiosity and hearsay response by management cannot be ignored when it is considered along with additional events as they unfolded. Manager Pinkley continued to engage in discussions with unit employees about their union sentiments in late December and early January. On 7 February 1985, Pink- ley hired mechanic Thomas Hawkins who credibly testi- fied that when he was hired, Pinkley told him Respond- ent was a nonunion shop. Mechanic Jere Tyrer was hired by Pinkley on 15 Feb- ruary 1985. he credibly testified that in early March Manager Pinkley told him he "wanted the mechanics to secure a withdrawal card from the Union because this was a problem for him, mentioning the Labor Board was on him." Manager Pinkley was also involved in discus- sions with other unit employees about securing a with- drawal card from the Union. In March, Manager Pinkley was instrumental in having unit employees sign a letter, prepared by himself, requesting a withdrawal card from the Union. Moreover, when Machinists Union Representative Meinell and Teamsters Union Representative Joggerst visited Re- spondent Vice President Arbeitman and requested recog- nition and bargaining, Arbeitman's reaction was one of anger and lack of cooperation, and he ordered them to leave the premises. It is also noted that Manager Pinkley's statement to mechanic Hawkins that Respondent was nonunion, is consistent with what mechanic Tyrer testified Manager Van Hoogstraat told him . As I observed Tyrer and Van Hoogstraat testify, I was persuaded by their demeanor that Tyrer was telling the truth. After evaluating all of the evidence of record, I was further persuaded that Van Hoogstraat's denial that he told Tyrer Respondent was going to operate nonunion, was not truthful. Additional- ly, I find from all of the evidence of Respondent's con- duct that Respondent did not intend to operate with a union shop. This finding is consistent with all of the evi- dence of record. I therefore conclude and find upon the foregoing cred- ited evidence, that Van Hoogstraat told Tyrer, a union member and steward, that Respondent was operating nonunion ; that such statement has a coercive and re- straining affect upon the exercise of employees' protect- ed Section 7 rights, and was therefore in violation of Section 8(a)(1) of the Act. 1056 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD THE REMEDY Having found that Respondent coerced and restrained its employees by telling them Respondent would operate a nonunion business, in violation of Section 8(a)(1) of the Act, the recommended Order will provide that Respond- ent cease and desist from engaging in such unlawful con- duct, and that it take certain affirmative action to effec- tuate the policies of the Act. [Recommended Order omitted from publication.]