Indianapolis Mack Sales And Service, Inc

690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Indianapolis Mack Sales and Service, Inc and Inter national Association of Machinists and Aero space Workers, District Lodge No 90 Case 25- CA-14790 28 September 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND DENNIS On 31 May 1983 Administrative Law Judge Arline Pacht issued the attached decision The Re spondent filed exceptions and a supporting brief 1 and the General Counsel filed an answering brief The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions 2 and briefs and has decided to affirm the judge s rulings, findings 3 and conclusions4 and to adopt the recommended Order as modified ' The Respondent requested oral argument The request is denied as the record exceptions and briefs adequately present the issues and the positions of the parties 2 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 F 2d 362 (3d Or 1951) We have carefully examined the record and find no basis for reversing the findings The Respondent has also excepted to the judge s finding that office manager Laura Richardson is the wife of the new owner We find ment in the Respondent s exception because there is no evidence to support such a finding but this error does not affect our adoption of the judge s decision 3 The Respondent contends that the judge erred in finding that it commenced operations with 10 mechanics The record reveals that the Respondent commenced operations on 2 August 1982 with 8 mechanics actually working but that 10 had been hired as of that date (The ninth employee started work 3 August and the tenth 6 August ) This discrepan cy does not undermine the judge s analysis of the representative comple ment Issue because the evidence shows as the judge found that on the date it began operations the Respondent viewed 10 employees as suffi cient to satisfy its staffing needs Indeed at another point in her decision the judge correctly stated that the Respondent hired a relevant comple ment of 10 men at least 8 of whom were experienced proven mechanics to handle Respondent s needs as full scale operations resumed The Respondent also contends that the judge erred in finding that it did not have the capacity to service fleet sales The evidence shows that the Respondent had the capacity to service fleet sales but it could not handle fleet trade in and financing This error does not undermine the judge s conclusion that the volume of the Respondent s business would not match the levels of its predecessor because the Respondent aban doned all paint and body work and its diminished ability to handle fleet sales would likely be reflected in its volume of business In adopting the judge s analysis of the representative complement issue we also rely on Premium Foods v NLRB 709 F 2d 623 (9th Or 1983) which enforced the Board s decision 260 NLRB 708 (1982) which the judge cited 4 The Respondent has excepted to the judge s conclusion that the fol lowing unit is appropriate for the purposes of collective bargaining All leadmen mechanics and porters employed by the Employer at its Indianapolis branch but excluding office clerical employees guards watchmen service employees all stockroom employees and supervisors as defined in the Act ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re spondent Indianapolis Mack Sales and Service Inc Indianapolis Indiana its officers, agents, suc cessors and assigns shall take the action set forth in the Order as modified 1 Insert the following as paragraph 1(b) (b) In any like or related manner interfering with restraining, or coercing employees in the ex ercise of the rights guaranteed them by Section 7 of the Act 2 Substitute the attached notice for that of the administrative law judge CHAIRMAN DOTSON dissenting I disagree with my colleagues that the Respond ent unlawfully refused to recognize and bargain with the Union In my view the record fails to sup port the majority s finding that a bargaining unit comprised solely of the leadmen, mechanics, and porters, exclusive of all other service department employees has been shown to be appropriate The Board has long held that automotive service de partments should not be fragmented into multiple units Such employees generally share a strong community of interest which warrants their repre sentation by a single bargaining agent While my colleagues rely on a bargaining history within this smaller unit as established under another employer in making this exception to normal unit determina tion criteria, I am unpersuaded that this factor alone should be accorded controlling weight Therefore I do not join in finding that the Re spondent s refusal to recognize and bargain with the Union violated the Act 1 The Respondent contends that the record should be reopened for submis sion of evidence regarding the appropnateness of the unit During its opening statement the Respondent mentioned the issue of the appropnateness of the above unit The judge erroneously stated that the issue was not before her The Respondent then stated that it did not wish to raise or contest the Issue The Issue was not raised again dunng the hearing nor did the Respondent ever request to make an offer of proof concerning the matter The above unit is identical to that found in the collective bargaining agreement the predecessor and the Union executed In fact the Union has represented the predecessor s employees in a separate service depart ment unit since 1964 In light of the employees common work interests and their history of separate representation we find that the above unit is appropriate for collective bargaining See Saks Fifth Avenue 247 NLRB 1047 1051 fn 9 (1980) enfd in pertinent part 634 F 2d 681 (2d Cir 1980) Graneto Datsun 203 NLRB 550 (1973) cited by the Respondent is distinguishable as it is a case involving initial organization Accordingly for all of the above reasons including the Respondent s failure to seek to introduce evidence on the unit issue at the hearing its request to reopen the record is denied ' Thus I find it unnecessary to address the successor Issue 272 NLRB No 108 INDIANAPOLIS MACK SALES 691 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, join or assist any union To bargain collectively through representa tives of their own choice To act together for other mutual aid or pro tection To choose not to engage in any of these protected concerted activities WE WILL NOT refuse to recognize and bargain collectively with the International Association of Machinists and Aerospace Workers AFL-CIO District Lodge No 90 as the collective bargaining representative in the following unit All leadmen mechanics and porters employed by the Employer at its Indianapolis Branch but excluding office clerical employees, guards ' watchmen service employees, all stockroom employees, and supervisors as de fined in the Act 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 bargain collectively with the above named labor organization as the collec tive bargaining representative of employees in the unit described above with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement INDIANAPOLIS ' MACK SALES AND SERVICE INC DECISION STATEMENT OF THE CASE ARLINE PACHT Administrative Law Judge This case was tried before me at Indianapolis Indiana on Febru ary 2 1983 pursuant to a complaint which issued on Oc tober 29 1982 based on a charge filed by the Interna tional Association of Machinists and Aerospace Workers District Lodge No 90 (Charging Party or Union) alleg ing that the Respondent violated Section 8(a)(5) and (1) of the National Labor Relations Act (the Act) In sub stance the complaint alleges that the Respondent is a legal successor to Mack Trucks Inc and violated the Act by refusing to recognize and bargain with the Union as the duly certified collective bargaining representative of the service department employees in the predecessor company Mack Trucks Inc In its answer to the corn plaint Respondent dethed the commission of any unfair / labor practices The parties were given full opportunity to participate to introduce relevant evidence 1 to examine and cross ex amine witnesses to argue orally and to file briefs On the entire record of this case 2 including briefs filed by the General Counsel and the Respondent and from my ob servation of the deameanor of the witnesses I make the following FINDINGS OF FACT I RESPONDENT S BUSINESS At all material times Respondent has maintained its principal office and place of business at Indianapolis In diana where it is engaged in the sale and service of Mack Trucks and related products During the 12 month period immediately preceding the issuance of the corn plaint a representative period Mack Trucks Inc in the course and conduct of the business operations sold and shipped from its facility products goods and materials valued in excess of $50 000 directly to points outside the State of Indiana and purchased and received at its facili ty products goods and materials valued in excess of $50 000 directly from points outside the State of Indiana Based on the business operations of Mack Trucks Inc and based on a projection of Respondent s operations since on or about August 2 1982 Respondent will annu ally sell and ship goods and products from its facility di rectly to and purchase and receive goods and products at its facility directly from points outside the State of Indi ana in excess of $50 000 Accordingly the General Counsel alleges the Respondent admits and I find that the Respondent is now and has been at all times material herein an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act Ii THE LABOR ORGANIZATION INVOLVED Respondent concedes and I find that at all times mate nal the Union has been a labor organization within the meaning of Section 2(5) of the Act 1 Pursuant to a discussion on the record the General Counsel offered Into evidence subsequent to the hearing an exhibit marked G C Exh 10 which is the payroll record for all service department employees from August 2 to date This document was supplemented and to some extent duplicated by another set of payroll records submitted as R Exh 10 Both exhibits are admitted into evidence 2 The parties submitted a wntten stipulation in which they agreed to correct vanous errors which appeared in the transcript of the proceed wigs The stipulation has been marked Jt Exh 2 and is admitted Into evi dence In addition the Respondent moved to correct the transcript of the proceeding by inserting the word not as the next to last word on L 2 p 113 and substituting the word not for now on L 13 p 113 Re spondent s motion is granted for it is clear from the context that the pro posed words were the ones expressed r 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD _ The Issues The principal question to be resolved in this proceed ing is whether Respondent is a legal successor to Mack Trucks Inc with a concomitant duty to recognize and bargain collectively with the Union as of August 9 1982 Respondent contends that it is not a legal successor and therefore is absolved of any duty to recognize or bargain with the Union since there is not substantial con tinuity between its business operations and those of Mack Trucks Inc Further Respondent contends that by the time it obtained a complete work complement the em ployees who were formerly part of the represented serv ice department unit at Mack Trucks did not constitute a majority of the same department under Respondent Ac cordingly Respondent urges that the complaint should be dismissed III THE ALLEGED UNFAIR LABOR PRACTICES A The Purchase There is substantial agreement as to most of the facts in this case Until July 31 1982 3 Mack Trucks Inc a factory branch and district office of the National Corpo ration by the same name 4 sold and serviced Mack trucks and parts in the Indianapolis and surrounding areas In June Respondent entered into an agreement with the parent corporation of Mack Trucks to purchase the fac tory branch and establish it as an independent dealership By the terms of the agreement Respondent acquired 60 percent of $171 000 of its predecessor s accounts receiva ble subject to a 90 day recourse $200 000 of a $500 000 parts inventory 9 of its 90 trucks and a substantial por tion of its equipment Further Respondent leased the same premises previously occupied by the factory branch However Respondent did not assume Mack Trucks accounts payable or buy its goodwill or its cus tomer lists The factory branch did not cease doing busi ness until July 31 In the 2 months just prior to its do sure Mack Truck deliberately reduced incoming business in its service department In some instances customers work was postponed until after the takeover Although by the end of July no work remained in the shop Mack Trucks retained all 16 of its mechanics occupying them with maintenance and cleanup tasks in preparation for the transfer At the time of the purchase Respondent offered a po sition to Donald Ingram then working as the service de partment manager for Mack Trucks In July Respondent designated Ingram its general manager granted him dis cretion as to how many employees he could hire and au thorized him to seek the best possible employees Pursu ant to this charge Ingram reviewed the skills and per formance of the service department mechanics and by the latter part of the month offered jobs to nine of them 5 In addition positions also were offered to three 3 Unless otherwise specified all events described herein took place in 1982 4 The parent corporation is based in Allentown Pennsylvania 5 One of the nine mechanics Steve Peacock became Respondent s warranty manager a position outside the former bargaining unit employees in the parts department to the former sales men and to two of the four former office personnel 6 B The Union Requests Bargaining Since 1964 through the end of July the employees in the factory branch s service and parts departments were represented by the Union in two separate units each covered by an extant collective bargaining agreement 7 Although over the years the service department fluctuat ed in size from 14 to 24 men from at least December 1981 to the end of April 1982 the unit was composed of 14 mechanics In May just prior to the sale two addi tional mechanics were hired In June Mack Trucks Inc advised the Union of the impending sale and agreed to engage in bargaining over the effects of the closure 8 On the date of these negotiations July 23 the Union was ad vised that only eight of the former mechanics would be hired by the Respondent for its service department Mack Trucks closed on July 31 After a weekend hiatus Respondent opened its doors on August 2 with a staff of 10 mechanics 8 of whom were former Mack Truck employees By letter mailed on August 3 the Union again advised the new owner Lewis Richardson that it represented the department and requested recogm tion and bargaining On August 9 the Respondent s owner rejected the request asserting that he had a good faith doubt at the Union s majority support In mid August Respondent hired one more mechanic and another 5 in September and early October bringing the work force in the service department to 16 9 Since October the size of the unit has not varied None of the six employees added after August 4 were in the former bargaining unit prior to the sale Ingram explained that since Mack Trucks reduced the work in the service shop during the summer months prior to the transfer Respondent had no need for a full complement when it commenced operations on August 2 However Ingram stated that he assumed from the outset that as normal op erations the work force would expand to its original level The Successorship Criteria The Board with court approval has long held that certain legal obligations may devolve on the purchaser including the obligation to recognize and bargain with a union which represented the former owner s employees 8 A Mack Truck parts employee and a salesman were promoted to su pervisory positions by Respondent 7 The complaint descnbes the service department unit as All leadmen mechanics and porters employed by the Employer at its Indianapolis Branch but excluding office clencal employees guards watchmen serv ice employees all stockroom employees and supervisors as defined in the Act Respondent does not admit the appropnateness of the unit 8 After learning of the acquisition the Union s business agent wrote to the new owner informing him that it represented the parts and service department employees and requested that he sign the current collective bargaining agreement This letter together with Ingram s attendance at the July 23 meeting provides a sound basis for finding that the Respond ent had knowledge of the Union s status as the collective bargaining rep resentative of Mack Trucks employees 9 The six additional mechanics began working for Respondent on the following dates August 13 September 24 (2) September 17 (26) and Oc tober 4 INDIANAPOLIS MACK SALES 693 where there is substantial k continuity in the identity of the employing enterprise Jeffries Lithograph Co 265 NLRB 1499 (1982) Saks Fifth Avenue 247 NLRB 1047 1050 (1980) enfd in part 634 F 2d 681 (2d Cir 1980) Lincoln Private Police 189 NLRB 717 (1971) In deter mining whether the purchaser has continued the business of its predecessor to a significant degree the Board ex amines whether there is substantial continuity in the busi ness operations whether the same plant is used whether the same jobs continue under the same working condi tions whether the same supervisors are employed whether the same equipment machinery and methods of production are used and the same product or service of fered The paramount factor is whether the same or sub stantially the same work force is retained under the same working conditions See e g Premium Foods Inc 260 NLRB 708 (1982) It is said that controlling weight is not given to any one criterion Id In reality the Board rarely has found a purchaser to be a legal successor where the former owner s represented employees did not constitute a majority of the new owner s work force 10 On applying the above listed criteria to the the facts of this case I find that the 'nth= of successorship are met to a significant degree Administratively Mack Trucks Inc was a factory branch of the parent Company and consequently was closely integrated into the structure of the national cor poration Thus local supervisors were accountable to top management in the Allentown home office and to the re Donal office in Chicago Although the factory branch could order trucks for sale it also was obliged to accept vehicles on consignment and to order all parts through the parent corporation In contrast Respondent operates as a dealer under a franchise As a result it has a greater degree of independence from the national corporation Management is localized Respondent orders trucks on a floor plan basis and is not obliged to buy Mack Trucks parts exclusively As a practical matter however it con tinues to buy Mack parts since the prices are favorable Overall the structure of Respondent s work force re sembles that of Mack Trucks both were organized into four major categories service department mechanics parts department employees office clericals and sales men Within each department Respondent employs almost the same number of personnel as did its predeces sor Thus over a period of time Respondent enlarged its work force from 10 to 16 and maintained the same number of salesmen as did Mack Truck It has reduced its office personnel by two Apparently each department continues to engage in the same functions that were per formed under Mack Truck In particular the service de partment mechanics still service and repair vehicles using the mechanical skills required to perform the same serv ice for Mack Trucks Inc 10 See Spruce Up Corp 209 NLRB 194 196 200 (1974) enfd on other grounds 529 F 2d 516 (4th Or 1975) where former Board member Ken nedy concurring in part and dissenting in part elaborated on the majon ty opinion by noting that the Board has consistently refused to find a successorship and a duty to bargain where a majonty of the new employ er s work force was not composed of the employees of the old employ er See also ZIms Foodhner v NLRB 495 F 2d 1131 1140 (7th Or 1974) Respondent introduced a few innovations For exam ple whereas Mack Trucks had only two shifts Respond ent has implemented a third so that it now operates on a 24 hour basis A call in procedure has been instituted whereby some five mechanics whose homes are distant from the facility may telephone prior to reporting to de termine if work is available Respondent also has empha sized road service to disabled vehicles and in connection with this service has purchased two vehicles with porta ble auxiliary' generators Some retooling was necessary in order to obtain recertification for work on a Detroit diesel engine and several mechanics received special training in conjunction with the new equipment Apart from these revisions Respondent discontinued one aspect of Mack Truck s operations—paint and body work—and thereby eliminated the need for a mechanic who had per formed that job Respondent continues to service trucks using equipment purchased from its predecessor By virtue of Respondent s revised relationship to the parent corporation its supervisory staff has shifted Heretofore as a factory branch a district managerial staff composed of a district manager parts manager and service manager exercised overall authority at the branch and spent a portion of their workweek there Since Re spondent no longer functions as a district office supervi sory authority is localized and reposes chiefly in In gram s hands At the local level however Respondent s supervisory structure is identical to that of its predeces sor While titles have remained the same the identity of those filling certain positions has changed Thus the former parts manager retired and was replaced by Mike Ludlum previously an employee in the factory branch parts department With Ingram assuming the post of gen eral manager Rick Shelly Mack Trucks warranty man ager became service department manager His position in turn was filled by former mechanic Steve Peacock Mack Trucks office manager was transferred and his po sition was filled by Laura Richardson wife of the new owner Respondent retained two of the former office clericals and made former salesman Mike Sproutzsoff the new sales manager Like its predecessor the Respondent continues to sell Mack trucks In addition Respondent has become a dealer for Vulcan Lowboy Trailers and other types of trailers as well However in its more independent status it is unable to handle large scale fleet trade ins as Mack Trucks did Instead much of its sales are to single owner operators rather than to national accounts This shift in clientele has meant some changes in the work of the service department For instance mechanics no longer repair fleet trade ins for resale and they now work on a wider variety of traded in trailers Analysis Although certain distinctions exist between Mack Trucks Inc and Respondent what emerges from this record are the similarities between the organization and operations of the two enterprises Respondent s primary purpose like that of Mack Trucks Inc is the selling and servicing of Mack trucks A new product has been added but the record contained no suggestion that it had 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD become a major portion of the sales operation The intro duction of a new V 8 engine in the Mack Truck prob ably would have occurred whether or not the business remained a factory branch Consequently retooling would have been required with or without a change in ownership Further Respondent remained in the same premises and with some minor variation continued to cover the same geographic area The internal organizational struc ture is a perfect duplication by Respondent of Mack Trucks four major departments each of which continues to perform similar functions There has been a turnover in the supervisory personnel for each department but for the most part first line supervisors were culled from among former employees of Mack Trucks and thus are well known to the rank and file employees with whom they formerly worked side by side Moreover it cannot be disputed that the work force continues to perform the same tasks as were done previously Ingram conceded that the mechanics employ skills identical to those which were used previously Changes such as those required to service the Detroit diesel engines or a new Mack engine would have happened under any circumstances Al though the emphasis on road service work is a deviation from Mack Trucks practice mechanics continue to use the same skills to repair disabled vehicles whether in or outside the shop The most significant change to which Respondent points is the conversion of the business from a factory branch to an independent dealership While certain changes have occurred (changes in corporate structure greater discretion with respect to the number of trucks ordered from Mack and emphasis on individual rather than fleet sales) the Respondent s business is essentially the same as its predecessor s Thus since the commence ment of its operation Respondent has engaged in essen tially the same business operations at the same location selling and serving substantially the same product as Mack Trucks Inc did before the sale Although Re spondent s business is more localized the differences that result from this fact are not of such magnitude as to be given controlling effect See Zims IGA Foodhner 201 NLRB 905 (1973) enfd 495 F 2d 1131 (7th Cir 1974) cert denied 419 U S 838 (1974) In short there is sub stantial continuity in the employing industry Conse quently the Respondent has an obligation to bargain with the Union unless it can be shown that a majority of its employees in a representative complement were not unit employees of the predecessor Zims Foodhner v NLRB supra at 278 Stewart Chevrolet 262 NLRB 362 (1982) The problem is one of identifying when a representa tive complement is in fact employed To be sure no precise point in time can be fixed with mathematical cer tainty as to when an employer has attained a relevant complement or is in normal or substantially normal pro duction 11 Rather in making that determination the Board considers the factual circumstances of each case in order to accommodate the goals of insuring maximum employee participation in the selection of a bargaining agent and permitting employees to be represented by a collective bargaining agent as quickly as possible See NLRB v Pre Engineered Building Products 603 F 2d 134 136 fn 1 (1979) denying enf on other grounds 228 NLRB 841 (1977) In striking a proper balance the Board has long held that the time for determining what percentage of a pur chaser s employees were former affiliated employees of a predecessor is when a demand for bargaining has been made and a representative complement is on the job See Grico Corp 265 NLRB 1344 (1982) Hudson River Aggre gates 246 NLRB 192 fn 3 (1979) enfd 639 F 2d 865 (2d Cir 1981) Stated succinctly the Board has provided the following guidance t The correct test is ,whether at the time of recogni lion the jobs or job classifications designated for the operation involved are filled or substantially filled and the operation is in normal or substantially / normal production 12 i' In reliance on the above cited cases the General Counsel submits that the date for determining the Re spondent s bargaining obligations is the date following the business transfer when normal operations resumed Under this reasoning the operative date would be August 3 when the Union requested recognition and when 8 of 10 employees in Respondent s service depart ment were formerly employed by the predecessor com pany I find merit in this position It is true that Respondent commenced operations on August 2 with men in the service department 6 less than the complement on its predecessor s payroll at the time of the closure But this smaller number of employees is entirely consistent with Respondent commencing normal operations from the outset As noted earlier Mack Trucks for business reasons of its own purposely wound down completely the service department operation Thus Respondent started its busi ness with no service work left over from its predecessor If this is so a question arises as to why Respondent com menced operations on August 2 with 10 mechanics Since Ingram acknowledged that he was given carte blanche to hire as many employees as he saw fit and since he had extensive experience with the predecessor s service department it is a fair inference that he calculat ed Respondent s staffing needs and determined that rela tively normal operations for the foreseeable future would require a complement no greater than 10 men Further the Respondent emphasized at the hearing and in its brief that it did not have the capacity as did its predecessor to market or service fleet sales From this it is reasonable to infer that the volume of Respondent s business would not match the levels of its predecessor Consequently the work of the service department also would diminish Moreover Respondent stated that it abandoned paint and body work and by so doing elimi nated the need for one of the Mack Trucks mechanics who previously had performed this job The foregoing suggests that Respondent was able to project with rela " Pacific Hide ct Fur Depot v NLRB 553 F 2d 609 (9th far 1977) " Hayes Coal Co 197 NLRB 1162 1163 (1972) INDIANAPOLIS MACK SALES 695 tive accuracy the volume of its business and could fairly surmise that it would not equal that of its predecessor Consequently it could also fairly be assumed that the de mands on its service department would be diminished so that a complement of 10 mechanics would be sufficient for its normal operations Supporting this conclusion is record evidence that for the balance of August and half of September Respond ent s business needs warranted hiring only one additional mechanic It was not until the latter part of September and early October that Respondent hired another five men 13 Of these five two (Harmless and Dunaway) con sistently have worked on a part time basis Regular part time employees are under Board law included in a unit for purposes of representation Nevertheless it is signifi cant that these men worked an average of 25 and 12 hours a week respectively suggesting that Respondent had not achieved the volume of work of its predecessor Given the above considerations it becomes clear why Respondent commenced operations with a complement of 10 mechanics Ingram reasonably projected the volume of work that could be anticipated for the foresee able future in the service department Accordingly he hired a relevant complement of 10 men at least 8 of whom were experienced proven mechanics to handle Respondent s needs as full scale operations resumed The Respondent contends that its bargaining obliga tion should not be determined until it reached its full complement which it argues did not occur 'until Octo ber 4 when it hired its 16th employee the same number that were employed by Mack Trucks immediately prior to the sale Since only 8 of those 16 mechanics were holdovers the Respondent maintains that the Union did not represent a majority and therefore no duty to bar gain arose Respondent cites Pacific Hide & Fur Depot v NLRB supra denying enf of 223 NLRB 1029 (1976) as authority for its position In that case the Ninth Circuit found that the purchaser Pacific was a successor insofar as the work of the employees in the unit was concerned that it continued to conduct essentially the same business in the same manner in the same plant using the same equipment and applying the same skills Id at 611 Nev " it Exh 1(A) shows that among the last six employees Respondent hired four (Harmless Dunaway Wright and Ward) were offered em ployment on dates more than a month in advance of the date they actual ly began working and several days after they submitted applications (Wright seems to have been offered a position even before the date which appears on his application ) I find the alleged dates of hire unreli able as to these four men Since the evidence demonstrates that Respond ent was uncertain about when if ever it would need additional employ ees and in light of the large gaps between the ostensible dates of hire and the dates of actual employment of the four applicants It is impossible to accept Respondent s assertion that these individuals were given and ac cepted firm job commitments when the prospect of employment was so indefinite I further note that it Exh 1(A) does not list separate hire dates and first dates worked for the original core of employees held over from Mack Trucks Yet certainly these men were offered firm positions in''advance of their first working date since Ingram took their applica lions in June and announced their retention to the Union on July 23 Like any employer Respondent surely wanted an available labor pool should business expand and accordingly kept applications on file But given the absence of any concrete or testimonial proof that these four men were indeed offered employment on the dates shown on the Exhibit I give no weight to those dates and rely instead on the dates given for the first week worked as their dates of initial employment ertheless the court refused to enforce the Board s bar gaining order since the complement of workers em ployed by Pacific steadily expanded as planned the period of time involved was short less than 60 days and the full complement was 19 just one more than [the predecessor s] complement when it ceased operations Id I of course am bound by the Board s decision in Pa cific Hide and by its subsequent decisions which are con sistent with it 14 See e g Aircraft Magnesium supra Hudson River Aggregates supra Even if the judicial opin ion in Pacific Hide governed here there are important factual distinctions between that case and the one at bar In Pacific the successor commenced operations with a work force of 7 all whom Were drawn from a predeces sor s complement which had fluctuated from 12 to 18 Within a week after it commenced operations Pacific hired 4 additional employees and in under 60 days brought its work force to 19 12 of whom had no prior employment history with the predecessor The court ob served that Pacific steadily expanded as planned (Em phasis added ) Unlike Pacific the evidence shows that Respondent s growth was neither steady nor planned In the 45 days after it commenced operations it added only one more mechanic indicating that Respondent s original assessment of its personnel needs had been realistic Fur ther although Ingram testified that he expected business to expand to a normal level he did not and could not state when he expected this normal level might be achieved Indeed he had no way of knowing when or whether the Respondent would ever match the volume of business attained by Mack Trucks particularly in light of his acknowledgment that Respondent could no longer handle fleet sales and trade ins It is noteworthy that Re spondent introduced no business records which would demonstrate that the volume of its business operations in September and October equaled that of its predecessor Undoubtedly Respondent hoped that its business would expand Every businessman harbors such hope But Re spondent added no new salesmen it did not expand its facility it did not expand its sales territory indeed its po tential volume of business with national corporate cus tomers by its own account was greatly reduced In gram s belief that the business would grow was founded on faith not hard business facts The Board does not permit an employer to defer his bargaining obligations until such time as he has expanded his business to l the proportions contemplated or desired when the predeces sor s business was acquired See NLRB v Hudson River Aggregates supra 639 F 2d at 870 In Aircract Magnesi urn supra and Pacific Hide & Fur supra the Board held that 2 months was too long to postpone the determina tion of a successor s bargaining obligation where a rele vant complement was on hand at the time of the Union s demand Similarly in this case I find unwarranted Re spondent s insistence that the determination of its bar gaining obligation be deferred until some point in time when it considered that its ultimate work force as op posed to a relevant complement had been reached For i4 Iowa Beef Packers 144 NLRB 615 616 (1963) 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tuitously Respondent s hopes for increased business ac tivity materialized in this case Such good fortune does not undercut the conclusion that the relevant comple ment was in place before Respondent reached its busi ness peak Indeed Mack Trucks service business was somewhat unpredictable since the number of its mechan ics fluctuated from 14 to 24 over a span of time More recently for at least 5 months prior to the sale it func toned with 14 mechanics A determination of an em ployer s obligations under the Act ought not to turn on such vagaries Here the Respondent acquired an ongo ing business which it planned to operate somewhat dif ferently from its predecessor After a weekend hiatus and with no immediate work in the shop it commenced operations with 10 mechanics 8 of whom were repre sented by the Union These core employees were in the majority on the date of the Union s demand for recogni lion as well as on the date Respondent rejected that demand In these circumstances the employer could not have entertained a good faith doubt that the Union rep resented less than a majority of a relevant complement Accordingly the Respondent was obligated to recognize and bargain with the Union Its failure to do so violates Section 8(a)(5) and (1) of the Act CONCLUSIONS OF LAW 1 Indianapolis Mack Sales and Service Inc is an em ployer engaged in commerce within the meaning of Sec non 2(2) (6) and (7) of the Act 2 International Association of Machinists and Aero space Workers District Lodge No 90 is a labor organ' zation within the meaning of Section 2(5) of the Act 3 The following described unit is appropriate for the purposes of collective bargaining All leadmen mechanics and porters employed by the Employer at its Indianapolis Branch but exclud ing office clerical employees guards watchmen service employees all stockroom employees and supervisors as defined in the Act 4 At all times on and after August 3 1982 the Union has been the exclusive collective bargaining representa tive of the employees in the above described unit 5 Respondent is a successor of Mack Trucks Inc and as of August 3 1980 had employed a sufficiently repre sentative complement of mechanics to operate the serv ice department at its Indianapolis Indiana facility 6 On August 3 1982 the Union made a valid demand for recognition and bargaining which Respondent reject ed on August 9 1982 and continues to reject 7 By failing and refusing on or after August 9 1982 to recognize and bargain with the Union as the repre sentative of employees in the above described unit Re spondent violated Section 8(a)(5) and (1) of the Act THE REMEDY Having found that Respondent has engaged in certain unfair labor practices I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the purposes and policies of the Act Specifically having found that Respondent violated Section 8(a)(5) and (1) of the Act by refusing to recog nize and bargain with the Union after August 9 1982 I shall recommend that it be ordered to recognize and bar gain with the Union upon request On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed" ORDER The Respondent Indianapolis Mack Sales and Service Inc Indianapolis Indiana its officers agents successors and assigns shall 1 Cease and desist from (a) Refusing to recognize and bargain collectively with the International Association of Machinists and Aero space Workers AFL-CIO District Lodge No 90 as the exclusive collective bargaining representative of employ ees described below All leadmen mechanics and porters employed by the Employer at its Indianapolis Branch but exclud ing office clerical employees guards watchmen service employees all stockroom employees and supervisors as defined in the Act 2 Take the following affirmative action deemed neces sary to effectuate the policies of the Act (a) On request bargain collectively with the Interna tonal Association of Machinists and Aerospace Workers District Lodge No 90 as the exclusive representatives of all employees in the unit described above and if an un derstanding is reached embody it in a signed agreement (b) Post at its facility in Indianapolis Indiana copies of the attached notice marked Appendix 16 Copies of the notice on forms provided by the Regional Director for Region 25 after being signed by the Respondent s authorized representative shall be posted by the Re spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respond ent to ensure that the notices are not altered defaced or covered by any other material (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply " If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur poses 16 If this Order is enforced by a Judgment of a United States Court of Appeals the words in the notice reading Posted by Order of the Na tional Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation al Labor Relations Board