Petition — Spitzer Akron, Inc. v. National Labor Relations Board

Supreme Court J. &

FILED

SEP 22 wWié

IN THE MICHAEL RODAK, JR., CLERK

—————

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1976

CASE no. EG =560 4q

SPITZER AKRON, INC.,

Petitioner,

-vs-

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

AND APPENDIX

ROEMISCH AND WRIGHT

M. ALFRED ROEMISCH, Of Counsel

DONALD N. JAFFE, Of Counsel

800 National City Bank Building

Cleveland, Ohio 44114

Tel: (216) 241-4755

Attorneys for Petitioner.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1976

CASE NO.

SPITZER AKRON, INC.,

Petitioner,

-vs-

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

AND APPENDIX

ROEMISCH AND WRIGHT

M. ALFRED ROEMISCH, Of Counsel

DONALD N. JAFFE, Of Counsel

800 National City Bank Building

Cleveland, Ohio 44114

Tel: (216) 241-4755

Attorneys for Petitioner.

TABLL OF CONTENTS

Statement of Jurisdiction . .« .»« e« e« e

Question Presented for Review. . + « -«

Statement of the Casc. . . . ° . . .

Argument in Support of

Petition for Certierari. « © © © ec &

In light of this Court's decision in

N.L.R.B. v. Burns International Security

Services, Inc., 406 U.S. 272 (1972), does

a successor emplover violate Section 8(a)

(5) of tive National Labor Relations Act

when it retains less than all of the pred-

ecessor's employevs and unilaterally in-

stitutes wage rates, hospitalization plan

and other terms of employment at the in-

ception of its acquiring the predecessor

company aad the predecessor's bargaining

agreement having expired.

Appendix (separately numbered)

Decision of the U. S. Court of Appeals,

Sixth Circuit, enforcing Second Supple-

mental Decision of N.L.R.B.e. « «© «© « «

Second Supplemental Decision and Order

of N.L.R.B. . . . . s . . s . .

Decision of the U. S. Court of Appeals,

Sixth Circuit, Keversing and Remanding

Supplemental Decision of N.L.R.B. . . .

Supplemental Decision and Order of

N.L.R.B. a . . . . . oO . * . .

ale

Order of U. S. Supreme Court Granting

a Writ of Certiorari, Vacating Judg- CASES (Cont'd.)

mend and Remanding Case « .« « « « « e« 36

Spitzer Akron, Inc. v. N.L.R.B., 195 NLRB

Decision of the U. S. Court of Appeals, No. 24, 79 LRRM 1286; affirmed, 479 F.2d

Sixth Circuit, Enforcing Initial Decision 1000 (CA 6, 1972); cert. granted, judgment

Of NeoLsR.Be s + 6 © © © © © © 0 6 vacated and remanded, 411 U.S. 979 (1973);

reaffirmed, 20% NLRB No. 80, 35 LRRM 1138;

Initial Decision of N.L.R.B. . . . ° . 39 reversed and remanded, 504 F.2d 28 (CA 6,

1974); reaffirmed, 219 NLRB No. 2, 89 LRRM

Decision of Trial Examiner . . . ° . ° 48 1679; affirmed, __ F.2d __ (CA 6, 1976), 92

LRKM 3007. ° . . . . . . ° . . . 1,29,21

CASES _

TATUTES

FIC v. Sperry & Hutchinson Co., 405 STA

U.S. 233, 245-250 (1972). . o . . . . 24 25 B.8.6. Section 1254 ° - 2 o P e a l

Golden State Zottling Company v. Section 10(e) and (f), ational Labor Re-

,*

Hevard Jehncen Coy > Se ee Section 3(a)(5), National Labor %elations 3, 11,13

Board, 417 U.S. 249 CORD « 65 oe Act, as amended, 29 U.S.C. Sec. 15(a)(5) . 23,24

N.L.RK.B. v. Bac'irodt Chevrolet, 46%

F. 2d at 969 (CA 7, 1972) « «© 6 © © =e

N.L.ii.eb. v. Burns International 13,14,15, 16,

Security Services, Inc., 406 U.S. 19,29, 21,22,

272 (1972) »« «© © © © © ow

Railway v. REA Express, Inc., 523

F. 2d 164, 17) (CA 2). ° . ° . ° . . 21

SkC v. Chenery Corp., 318 U.S. 39,

37-385 (1943). . . . - ° « ° . o e 24 “4

-iii-

STATEMENT OF JURISDICTION

This matter is before the Court on a petition

for writ of certiorari to review an order and de-

cision of the U. S. Court of Appeals for the Sixth

Circuit entered on June 22, 1976, which upheld and

enforced a Second Supplemental Decision and Order

of the National Labor Relations Board. The Court's

opinion is not cited in the Federal Reporter System

but is cited at 92 LRRM 3007 and reprinted at Appen-

dix pages l-ll. The Board's decision: is cited at

219 NLRB No. 2, 89 LRR4 1679 and reprinted at Appen-

dix pages 12-25. This Court has jurisdiction to

review the instant case by certiorari pursuant to

“24 U.S.C. Section 1254 and Section 10(e) and (f)

of the National Labor Relations Act. (29 U.S.C.

Sections léV(e) and (£)).

This case was originally decided by tie Board

at 195 NLRB No. 24, 79 LRR1 1286 (reprinted at

Appendix pages 39-47.) enforcement grant:d, 470

F. 2d 1U0U (CA ©). A petition for a writ of cer-

tiorari was granted by this Court, which vacated

-le-

the judgment and remanded the proceedings to the

Board. 411 U.S. 979. The Board reaffirmed its

original decision in a Supplemental Decision and

Order, 208 NLRB No, 80, 85 LRRM 1138. (Appendix

pages 28-35. On review the Sixth Circuit re-

versed and remanded the proceeding again on the

basis that petitioner had not been provided an

opportunity to present its position on the remand.

504 F. 2d 28. (Appendix pages 26-27). The Board

thereafter issued its Second Supplemental Decision

which reaffirmed its two prior decisions. It is

that last decision which is now before this Court.

QUESTION PRESENTED FOR REVIEW

In light of this Court's decision in N.L.R.B.

vs. Burns International Security Services, Inc., 406

U.S. 272 (1972),-does a successor employer violate

Section 8(a)(5) of the National Labor Relations Act

when it retains less than all of.the predecessor's

employees and unilaterally institutes wage rates,

hospitalization plan and other terms of employment

at the inception of its acquiring the predecessor

company and the predecessor's bargaining agreement

having expired.

STATEMENT OF THE CASE

In 1964 a Chrysler-Plymouth auto sales and ser-

vice facility was operated at 457 East Market Street,

Akron, Ohio, by Arnett, Incorporated. On January 15,

1963 a new agency by the name of East Town Chrysler-

Plymouth, Inc. operated the agency at the same ad-

dress. East Town was organized through the co-oper-

ation of the Marketing Investments Division of the

Chrysler Corporation under an arrangement with one

John Wilson whereby Wilson owned 25% of the capital

Steck and Chrysler Corporation owned 75% of the cap-

ital stock. On August 27, 1968 East Town executed a

collective bargaining agreement with Local 762 of

The International Association of Machinists expiring

on August 31, 1970. During this time, there was a

collective bargaining agreement between the same

union and a multi-employer association, but neither

East Town nor Spitzer Akron was a member.

In April of 1970 preliminary negotiations

between Chrysler Corporation and certain Spitzer

personnel were held with a view to acquiring

the Chrysler=-Plymouth agency at 457 East Market

Street, Akron, Uhio, The initial negotiations

alien

»,

with Chrysler terminated on May 31, 1970 because of

differences over the sale price. On July 22, 1970

enpibiahiihdehemeiial and continued throughout August

and were finally consummated at about 5:00 p.m. on

September 4, 1970 at which time Spitzer Akron, Inc.

paid East Town approximately Two Hundred Ninety Thou-

sand Dollars ($290,000.00) for the inventory of 82

new cars and some demonstrator cars. Spitzer Akron,

Inc. received its interim license to do business as

an automobile dealer from the State of Ohio on August

31, 1970, and was formally organized on September 1,

1970 with Alan Spitzer, John Spitzer and Del Spitzer

each owning one-third (1/3) of the capital stock.

On August 13, 1970 East Town notified the Union

by letter that it was terminating its contract as of

August 21, 1970 and also advised that substantially

all of its assets had been sold. East Town, however,

did not identify the Purchaser nor was a copy of that

letter mailed to Spitzer Akron. As an accommodation

to East Town customers, it was agreed that Spitzer

Akron, Inc. would complete any work in process and,

for accounting purposes only, obligated itself for

-5-

payroll expenses effective as of September 1, 1970.

East Town operated a paint and body shop in

conjunction with the auto agency. Spitzer Akron did

not purchase that operation nor retain any o* the

employees working in that classification even though

they were covered in the former union contract.

Spitzer Akron leased the paint and body shop area

to one John Irec, an independent operator who hired

his own employees and performed work for petitioner

and many other customers. Excluding the paint and

body shop employees (4 in number), petitioner re-

tained i0 of the 11 East Town employees in the

mechanical classification.

After the negotiations were concluded on Sep-

tember 4, 1970 Del Spitzer, John Spitzer and Alan

Spitzer immediately held a meeting with the employees

to explain the nature of the new dealership and the

benefits that would be provided employees. Unilater-

ally the Company gave wage increases and indicated

that it would pay one-half (1/2) of the hospital

insurance premiums, which hospital plan was suggested

to be better than the plan the employees previously

abe

carried; payment of one-half (1/2) of the uniform

expense; pay for 6 holidays per year and a week of

paid vacation after a year of service. At the con-

clusion of the remarks, Del Spitzer asked if any of

the employees had any questions and there were none.

Witness Andy Parks, who was the shop steward, testi-

fied that no derogatory statements about the union

or any of its officials were made by any of the

Spitzers at that meeting nor was the union even dis-

cussed. Although there were no questions raised at

tne meeting, Andy Parks subsequently reported the

remarks to business representative Samuel RKamnytz.

On September 9, 1970 Ramnytz had a meeting with

Alan Spitzer wherein Ramnytz indicated that the Union

represented the employees of the auto agency and that

the Union wanted a contract. At that time Spitzer

asked what was involved in the contract. Ramnytz

indicated the wage scale and fringe increases that

were being negotiated with the dealers association

(Spitzer Akron was not a participant or member), and

indicated that whatever resulted from the areawide

contract was the same contract that the Union would

ate

insist Spitzer sign. At that meeting it was indi-

cated that the company did not foresee any problems

pertaining to the wage issue. Alan Spitzer indicated

to Ramnytz that the company had just taken over the

business, was in the process of taking miscellaneous

inventories and organizing the parts department, and

that petitioner was in a state of confusion and re-

quested the Union to grant the company an additional

two weeks in which to straighten out its organization

and make a decision after which they would again meet

to discuss the situation. It was indicated to the

union representative that the company was not willing

to rubber stamp any contract negotiated by the multi-

employer group. At that same meeting Ramnytz indi-

cated that Spitzer Akron could continue operating

during an existing strike against the multi-employer

bargaining group provided that Spitzer Akron would

agree to accept the contract which would eventually

be signed between the Union and the multi-employer

group. Petitioner refused to accept that proposal

and eubsequently the Union struck petitioner.

During that discussion on September 9, 1970,

a§a

Alan Spitzer said that in light of the comments with

the employees on September 4th, he doubted that the

employees wanted to continue with the Union and sug-

gested that the Union petition the N.L.R.B. for an

election and that if the employees selected the Union

as their bargaining agent, that he would negotiate a

contract. Ramnytz indicated that he had new author-

ization cards but never actually showed them to Spitzer

either on September 9 or at any time thereafter.

On or about September 21, 1970 Ramnytz returned

to the auto agency and was then advised by Alan

Spitzer that the company was not going to recognize

the Union for the reasons stated earlier on September

9, and then again reiterated that the Board should

conduct an election to determine representation. On

September 22, the employees went on strike and it was

still in progress at the time of the hearing before

the trial examiner on May 17, 1971.

On March 26, 1971, 10 striking employees formally

offered by letter to return unconditionally to work.

The company had sent each a letter requesting them to

return. Ramnytz testified that 8 of the 10 strikers

He

went with him one evening for purposes of arranging a

return to work but that at that meeting Alan Spitzer

said that the men would have to return the next day

when the service manager would be present and that he

and the service manager would interview them. When

Ramnytz and the men came back the next day Alan

Spitzer requested each employee to sign a new employ-

ment application, When Ramnytz inquired as to why

the new application was necessary Alan Spitzer indi-

cated that they were considered new employees and

would have to fill out the company's form, However,

shortly thereafter, the company's attorney advised

the Union and the Union's attorney that the form was

only to ascertain their availability for work, that

the striking employees were not considered as new

employees and that the form was not a prerequisite

for returning to work. During the aforementioned

interview, some of the employees made arrangements

with Alan Spitzer to return to work but all unit

employees remained on strike.

The Trial Examiner and the Board, whose deter-

minations were upheld by the Court of Appeals, held

-l0<-

that the company violated its collective bargaining

duty under Section 8(a)(5) of the National Labor

Relations Act by instituting wage changes and other

conditions of employment on the day that it commenced

its ownership. It was also held that inasmuch as the

strike, which occurred on September 22, 1970, was as

a result of the company's refusal to bargain with the

Union, the strike was a “protected” unfair labor |

practice strike.

As part of the remedy and order granted by the

Trial Examiner, it was held that the strikers need

not be offered reinstatement on the basis that 10

strikers had made a specific unconditional request

for reinstatement on March 26, 1971, and on a later

date the company had sent them letters requesting

them to return. The Trial Eaminer further held that

the strikers were entitled to back pay only from the

date of the request for reinstatement (March 26, 1971)

to the date that they received the letters from the

company offering them reinstatement. The Board, whose

view was upheld by the Court of Appeals without

opinion, overruled the Trial Examiner and held that

alle

the strikers were entitled to reinstatement allegedly

on the basis that the company did not make an uncon-

ditional offer of reinstatement in March of 1971

because of the request that the strikers sign an

employment application form. It also held that the

strike was continued as a result of the company's

"insistence’ on the condition that they return as

newly hired employees.

In addition, the Board overruled the Trial Exam-

iner's finding dealing with the entitlement to back

pay. The Board ordered that the strikers were en-

titled to back pay from March 26, 1971 until such

time as the company unconditionally offers the strikers

reinstatement. The Court of Appeals, in its opinion

affirming the Board, merely indicated that the Board's

rulings were supported by substantial evidence with-

out further comment on the issues.

=“ ™

: ARGUMENT IN SUPPORT OF

PETITION FOR CERTIORARI

In ligiit of this Court's decision in N.L.R.B.

v. burns International Security Services, Inc.,

406 U.S. 272 (1972), does a successor employer

violate Section 8(a)(5) of the National Labor Re-

lations Act when it retains less than all of the

predecessor's employees and unilaterally insti-

tutes wage rates, hospitalization plan and other

terms of employment at the inception of its

acquiring the predecessor company and the pred-

ecessor's bargaining agreement having expired,

This Court, in burns, held that although Burns

had an obligation to bargain with the Union regard-

ing wages and other conditions of employment, its

couduct did not constitute a Section 8(a)(5) vio-

lation which might occur when ry employer unilater-

ally changes a condition of employment without con-

sulting the bargaining representative. This Court

concluded that the unilateral changes in wages and

other terms of employment which Burns inst‘tuted

-13-

were not in violation of the Taft Hartley Act, as

Amended, notwithstanding that by July 1, 1907 (the

date of change) the Burns agency had already selected

its work force of 42 employees, 27 of whom were re-

tained employees. Even if bargaining had occurred

on or before July 1, 1967, buc after the employees

had been hired, Burns: "™ . . . could have unilater-

ally initi ted such propesals as the opening terms

and conditions of employment on July 1 without com-

mitting an unfair labor practice." (406 U.S. at

295).

The Court of Appeals herein upheld the Board's

decision and followed the Seventh Circuit's original

decision in N.L.R.B. v. Bachrodt Chevrolet and con-

strued the burns decision as relating to the timing

of the changes: ™".. . Whether they predate or

postdate the commencement of the duty to bargain."

(See Bachrout decision, 463 F. 2d at 969).

In the instant case, the Court of Appeals

held that when Spitzer Akron instituted its changes

on September 4, 1970 (the date Spitzer acquired the

alin

Bente Tg a duty to bargain with the Union

had already existed on the basis that the operational

structure and the hiring of the employees had al-

ready been accomplished before Spitzer Akron com-

meuced its operations. It is respectfully submitted

that the Court and the Board incorrectly applied

the Burns standard. The Board found that prior

to the change of ownership on September 4, 1970

the bargaining unit of the predecessor employer

consisted of "all auto mechanics, body repairmen,

painters, their apprentices and helpers, and lu-

brication men." When Spitzer Akron commenced oper-

ations, however, it did not continue to operate

the paint and body shop and thus did not retain |

all of the emplovees. At the inception, taercfore,

the pre-existing bargaining unit itself was altered

as a result of the change of ownership. The board's

original findings, unchanged bv its Supplemental

Decisions or by the Court of Appeals were that

1/ Spitzer Akron, Inc. was not issued its a to

dealer's permit from the Ohio Bureau of Motor

Vehicles until August 31, 1970. (Exhibit No.

» = Spitzer).

Spitzer Akron did not retain or plan to retain "all"

of the prior employees but retained only 10 out of

approximately 15. The percentage of retention in

the instant case is approximately 67% as compared

to 64% in Burns. The instant case, it is submitted,

falls squarely within the permissible parameters

enunciated i. Burns. In Golden State Bottling Company

v. N.L.R.B.. 414 U.S. 168 (1973), this Court, follow-

—-—

ing Burns, again acknowledged that a majority of the

predecessor's employees were hired by the new employer

but that such majority status did not preclude the

employer from instituting changes. Cf. Howard Johnson

Co. v. Detroit Joint Board, 417 U.S. 249 (1974) re-

versing the Sixth Circuit regarding the application

of Burns to a section 301 action.

Although the Court of Appeals held that the

duty to bargain arose prior to September 4th, the

Court, nowhere in its opinion, suggested that the

unilateral action by Spitzer in discontinuing the

paint shop and terminating the painters from in-

clusion in the bargaining unit or in using less

-l6=-

than all of the previous mechanics was imp.ioper

or outside Spitzer Akron's authority as a new

owner. Petitioner submits that it is incongruous

to argue on the one hand that an unfair labor prac-

tice has been committed when, on the day that it

commenced its operations, Spitzer Akron immediately

announced its wage and employment structure, and

on the other hand it does not commit an unfair labor

LAT when it decides to discontinue the paint

shop and terminate the painters who are part of

the same bargaining unit as the mechanics.

Petitioner does not doubt that the Board

will suggest to the Court that inasmuch as it

previously has denied a petition for a writ of

certiorari in Bachrode Chevrolet Co., 423 U.S. 927,

it should similarly deny a petition for certiorari

in the instant case. In that regard, it is contended

that Bacirodt and the instant case are factually

distinguishable. In Bachrodt there was a specific

finding that the successor employer, for a period

of time, maintained virtually identical operations,

including the paint shop, and did not discontinue

the paint shop operations until it had already com-

menced its operations. Exactly the opposite sit-

uation occurred herein.

The Sixth Circuit, in upholding the Board's

Second Supplemental Decision, also held that a duty

to bargain .cose prior to the insiitution of the

unilateral changes because it was "perfectly clear"

in early August.of 1970 that Spitzer Akron intended

to rehire a sufficient number of employees to retain

the union's majority status on the basis of a comment

that Del Spitzer stated to one of the mechanics.

The Court of Appeals stated that: "Del Spitzer

informed the employees that he [wanted] every man to

stay on the job, and would carry on as usual."

__F. 2d__, ¥2 LRRM at 3010. Im that regard, it is

petitioner's contention that a single isolated casual

comment made to one employee is not factually suf-

ficient to raise the comment to a status of "per-

fectly clear." The alleged comment to mechanic John

Hall was not made in the context of any meeting nor

-l3-

was there any indication that Hall was conversing

in any type of status as a union representative or

as a union steward, A review of the record would

reflect that the comment was actually made in a social

tone. There is also no evidence to indicate that

the conversation between Del Spitzer and John Hall

was ever communicated to any third person or to anyone

within the union organization. Additionally, the

record is devoid of any discussion as to any par-

<touiane regarding wages or other conditions of

employment during this conversation between Del

Spitzer and Hall. To the contrary, however, it was

not until the afternoon of Friday, September 4, 1970,

that Spitzer Akron had finally completed the acaui-

sition of the automobile agency and immediately there-

upon called a meeting of the employees and announced

and explained the nature of its organization, its

wage structure and conditions of employment. Spitzer

Akron's conduct is no less violative of the Act as

was Burns’ conduct.

The facts of the instant case do not justify

-19-

a conclusion that this is one of those “instances

in which it is perfectly clear that the new employer

plans to retain all of the employees in the unit."

Here, Spitzer Akron did not sign any contract or

prior comaitment to hire all or any portion of East

Town's employees nor is there any evidence that the

wages, hours and other conditions of employment

honored by East Town would be assumed by Spitzer

Akron. Not only was there no prior commitment, but

the bargaining agreement itself had expired,

The Sixth Circuit's decision upholding the

Board's Second Supplemental Decision is substan-

tially similar to the Board's argument opposing

the petition for certiorari which was initially

granted by this Court in Spitzer Akron, Inc. v.

N.L.R.B., 411 U.S. 979.

Although the Board, in its Supplemental and

Second Supplemental Decisions, gave lip service

to this Court's decision in Burns, there is nothing

to indicate the basis on which the Board twice re-

affirmed their initial decision that Spitzer Akron

had committed an unfair labor practice other than

an acknowledgment that the Board has reconsidered

the case in light of Burns and that it was “per-

fectly clear" that Spitzer Akron planned to retain

all of the predecessor's employees.

The Court of Appeals relied on the Second

Circuit's decision in Railway v. REA Express, Inc.,

523 F. 2d 164, 171, that the comments of Del Spitzer

were sufficient to establish that the employees were

mislead by “tacit inference" into believing that

they would be retained without changes in conditions

of employment. __F.2d__, 92 LRR{ at 3010. In

several instances, the court, in its opinion, used

the word "employees" having been told that the

company would carry on as usual or that there would

be no changes. The record will clearly establish

that other than the single isolated comment by Del

Spitzer, there was no communication to any other

employee or union representative, or that the em-

ployee ever communicated Del Spitzer's remarks to

any third person so as to establish an inference

of no change or to establish that the employees,

a2ie

individually or collectively, were mislead.

se would be @ rare eitustion Where & aeeceteer Spitzer Akron constituted violations of Section 8(a)

. Th

employer would fail to retain a significant number, (5) because it had « precedent duty to bargain ”

if not a majority, of the predecessor's employees, Trial Examiner had initially stated:

" . . « « The obligation of the successor

if fer no other reason than to maintain a certain employer to bargain with the incumbent union

continuity of operation. The record herein is un- sean eaeunieek aabadaed ahaa ee ger ag

controverted that the unilateral changes instituted mena nat er i lin Be ns cote ne ona

by Spitzer Akron were done immediately upon acqui- cash of Gals aiaaaaien + teenage igo

sition of the automobile agency and should not be a ain SS aes calaednie Emenaiet

"

considered other than as a statement of initial ing duty under Section 8(a)(5) of the Act.

terms. Even in Burns the evidence was uncontro- The Board reasserted and upheld the Trial ines

verted that more than @ majority of the pred- in that regard when it commented, in its Second

$ 21

ecessor's employees were retained by Burns prior Supplemental Decision: (Appendix page 21)

"Under the teaching of Burns, respondent

to the time that it commenced its operations on had a bargaining obligation as a successor

‘ to East Town. The respondent's position

July 1, 1967. Therefore, to apply the rationale on that date was akin to that of an employer

, confronted with a newly selected bargaining

of the Sixth Circuit's decision herein to Burns, representative. It was not free thereafter

to establish or change conditions of employ-

bucns clearly would have violated the Act by uni- ment for unit employees without bargaining

with the union."*

laterally initiating any changes in conditions

The Trial Examiner's language, supra, is

or terms of employment.

, virt t language a ring in

The Board, in its various decisions, con- wally identical with language appesting

Burns (406 U.S. at 293) and upon which the Board

cluded that the unilateral changes instituted by hg oe

*This identical language also appears in the

=220 Board's Supplemental Decision, Appendix page 34.

relied when it found that Burns had violated the

Act by instituting unilateral changes. The above

language was rejected by this Court when it ruled

that Burns’ conduct: ".. . is not like a Section

3(a)(5) violation where an employer unilaterally

changes a condition of employment without consult-

ing a bargaining representative." (406 U.S. at

294).

Inj this Court's decisions of FIC v. Sperry &

HutcNinson Co., 4035 U.S. 233, 245-250 (1972) and

SEC Vv. Chenery Corps, 318 U.S. 8O, 87-88 (1943),

this Court held that it was necessary that the ad-

ministrative agency set forth the grounds upon which

its action was undertaken. In the instant matter,

however, the Board's opinion does not indicate how

it arrived at the conclusions that it did in light

of burs other than to cite the case. The course

of th: Board was essentially a journey in rephras-

ing its initial decision as a supplemental decision

anu then redesignating that decision as a second

supplemental opinion, There is absolutely no re-

flection of change in analysis or conclusion from

@2hea

the Board's initial decision to its second supple-

mental decision.

The only significant difference is that in

its original decision the Board did not use the

Burns language as phrased by this Court. In light

of the history and extent of litigation in the in-

stant case, however, it is difficult to understand

how the Board could state that, “The instant case

is one of the type referred to by the Supreme Court

in the above quoted language." (Appendix page 19).

Nowhere in its supplemental or second supplemental

decisions did the Board set forth or explicate those

facts or elements now considered by it, in light

of the remand, which it had not previously considered

in its initial decision. Viewed in its totality,

Spitzer Akron did not commit any unfair labor prac-

tice by instituting a change in wage structure,

benefits or other aspects of employment and its

conduct was merely the establishment of initial

terms of operation which were sanctioned by the

Burns decision.

The Boerd, and the Sixth Circuit in up-

holding the Board's decision, has applied and

extende. b.rns far beyond any context originally

envisioned when Burns was decided by this Court.

The net effect of the Court of Appeals’ decision,

if left undisturbed, would be to sanction an appli-

cation of Burns by the Board in such a manner chat

it would constructively overrule this Court's lang-

uage that"... a successor employer is ordinarily

free to set initial terms on which it will hire the

employees of a predecessor ...." 406 U.S. at

294-295. burns permitted untlateral changes at

the inception of the successor's operations not-

withstanding that a bargaining agreement was still

operative. Burns should likewise be coubied in

a situation, such as the instant case, where the

ap,reement expired prior to the acquisition and

the tnitial terms of employment were announced

immediately upon acquisition. Petitioner Spitzer

Akron, Inc. prays for review and that its petition

-26<

for a writ of certiorari to the Court of Appeals

for the Sixth Circuit be granted.

September, 1976.

neesentieite submitted,

ROEMISCH AND WRIGHT

M. Alfred Roemisch, of Counsel

Donald N. Jaffe, of Counsel

Attorneys for Petitioner

efile

APPENDIX

———<— ee oe ee Oe ee ee ee Oe ee ee ee ee eK eee ee ewe Beer ewe ewe

No. 79-2912

UNITED STATES COUKT OF APPEALS

FOR THE SIXTH CIRCUIT

SPITZERK AKRON, INC.,

Petitioner,

-V-

PETITION FOR REVIEW

OF AN ORDER OF THE

NATIONAL LABOR RE-

NATIONAL LALOR LATIONS BOARD.

)

)

)

)

)

)

)

RELATIONS BOARD, )

)

)

Respondent.

Decided and Filed June 22, 1976

Before: PHILLIPS, Chief Judge, and McCREE

aud LIVELY, Circuit Judges.

PHILLIPS, Chief Judee. This case is before

the court ou a petition to review and set aside

a Second Supplemental Decision of the National

Labor htelations Board of July 9, 1975 reported

at 219 N.L.R.B. No. 2 and the cross application

of the Board for enforcement. The Board re-

affirmed its conclusion that Spitzer Akron, Inc.

(the Company) violated §§$8(a)(5) and (1) of the

National Labor Kelations Act by unilaterally

changiag wages and working conditions when it

took control of its predecessor's business on

September 4, 1970, and by refusing to recognize,

meet and bargain with the incumbent union on

September 21, 19/u. The Board also reaffirmed

its conclusion that the employees were unfair

laber strikers who were entitled to reinstate-

Ment after tuw-ir unconditional request to return

On Marcu 20, 1l¥/1. We enforce the order of the

poaru.

Ja January 26, 1972, the Board issued its

orivinal decisior and order, 199 N.L.R.B. No.

24, financing tue Company violated §§3(a)(5) and

(1) of tue Act by refusing to bargain with the

union as the exclusive bargaining representative

of all employees in the appropriate unit, and

ordering ic to bargain with theunion. The

Board's order required the Company, upon request,

to cancel any unilateral changes of benefits

or workiig conditions which it made, The order

furtier required the Company to offer reinstate-

Menc to those stctikers to whom it had not made

an unconuitional offer of reinstatement, and

cto male wiole all employees who went on strike

for any loss of earnings they might have

sutferec from the time of their unconditional

otfer to return to work until the date the

Com any offered their reinstatement.

In lizht of the Supreme Court's then recent

decision in NLRB v. Burns International Security

Services, Inc., 406 U.S. 272 (1972) and NLRB v,

Wayne Convalescent Center, 465 F, 2d 1039 (6th

Cir, 197°), this Court granted enforcement of

the Boara's order, 479 F, 2d 1900, 1001 (1972).

Subsequentiv, upon application of the petitioner

herein, the Suprome Court granted certiorari,

vacatca the judgment and remanded the case to

tiis Court with instructions to remand the case

to tue Board for such further proceedings as

may Le ap,ropriate in light of Burns; FTC v.

Sperry & Kutchinson, 405 U.S. 233, 245-250

(1972); SLC v. Cienery Corp., 318 U.S. 80, 87-

$56 (1943); Bachrodt Chevrolet Co.v. NLRB, 411

U.S. 912 (1973); and, Denham v. NLRB, 411 U.S.

945 (1975). Om Auzust 15, 1973, this Court

Temanded Che Case to the Board. On remand, the

Board re-vxamined its original decision in light

of Burns 4nd reaffirmed its conclusion that the

Company violated Sections 8(a)(5) and (1) of

tie Act. tJhis Supplemental Decision and Order,

issued on J2auary 29, 1974, is reported at 208

Wel. KeB. NO. vo),

4

An appeal was talen by the Comnany from the

Supplemental Urder to this Court. We granted

the petition for review, and rewanded the case

to the Board on the basis that petitioner had

not been provided an opportunity to present its

views on the cases cited in the Supreme Court's

order and their applicability to the facts of

this case, 504 F. 2d 28, 29 (1974). The Board,

having complied with our order of notice and

opportunity to be heard, issued its Second Sup-

plemental Decision reaffirming its conclusions.

That decision is the basis of the present

petition to review.

I,

Reference is made to the decisions of the

Board cited above for a detailed statement of

the facts. For purposes of this appeal the

facts are summarized as follows:

In 1964, Local 762 of the ‘lachinists'

Union entered into a multiemployer agreement

with certain automobile dealers including Arnett

Chrysler-Plymouth, a predecessor of East Town

Chrysler-Plyaouthn (East Town). The collective-

bargaining arreement was to expire in 1967 but

was extended to August 31, 1970, East Town was

not a signatory to the contract of September

1964, nor its amendments; however, on August

27, 1966, the Union and East Town entered into

a separate agreement which also expired on

August 31, 19/v.

In April 19/70, representatives of Spitzer

lanagement began megotiating for the purchase

of certain assets of East Town, and these nego-

tiations were concluded on September 4, 19/0,

five Jays after the expiration of the bargaining

agrecment. At an employees’ meeting on Sep-

tember 4, 1979, shurtly after tie Company had

consummated the purchase of assets from East

Town, tin emslovees were informed chat wage

ojo

ae ef a

scales and benefits would be greater than the

rates paid under the expired contract. Such

changes were made without consulting with the

incumbent union.

The work force was hired prior to the announce-

ment of the changes in wages and benefits; moreover

such changes had not been part of the initial terms

of rehiring. Further, when Del Spitzer visited

East Town early in August 1970, in connection with

family plans for buying the business, he told

mechanic Join Hall that the Spitzers planned to

buy East Town, and would need good mechanics. When

llall suggested that he keep all the East Town

mechanics, Spitzer replied that he had checked

on them, found they were good men, and "[wanted]

every man to stay on the job, and will carry on

as usual",

The Boacd reaffirmed in its Second Supple-

mental Decision that the Company was conducting

the business in essentially the same form and

scope as it was before the transfer of ownership

(with the exception of the auto body repair and

paint shop) using 10 of the 11 men of the East

Town work foree. Accordingly, under the teach-=-

ing of Burns, the Company had a bargaining obli-

gation as a successor to East Town, This obli-

gation was not met when the Union demanded recog-

nition on September 21, and the Company refused

to recognize and bargain with the Union. The

Board also found that when the Company took over

the business on September 4 it had hired its

"full complement of employees", which consisted

of substantially all the men who had worked for

East Yown; therefore, the Company had a duty to

bargain with the Union on September 4 before

any changes were made in the conditions of em-

ployment. ‘foreover, the Board found that the

facts of the instant case are sufficient to

establish a duty to bargain, under the Burns

edie

doctrine, which existed prior to the formal

rehiriny of employees. It was "perfectly clear"

in early August that a majority of the former

employees would be rehired.

Il.

It appears that the Supreme Court in vacating

our original enforcement order was concerned with

the fact that our review of the Board's decision

was not limited to the grounds upon which tie

Board purported to act. See Sperry & Hutciinson,

405 U.S. at 249; Chenery, 318 U.S. at 37, 94. Our

decision, on the unilateral change question, re-

lied in part on a concept propounded in language

in Burns which tine Board had not considered pre-

viously since that agency's order predated burns.1/

We have reviewed the record as a whole and

find there is substantial evidence to support thie

Board's finding that the Company was a successor

employer and therefore obligated to recognize

and bargain with the Union on September 21, 1979,

See Burns, 406 U.S. at 280-261; Wayne Convalescent,

465 F. 2d at 1041-42, Further, there is substan-

tial evidence to support the Board's decision that

the Company did not have a good-faith doubt of the

Union's majority status.

1/ The Supreme Court also vacated and remanded NLRi

v. Bachrodt, 468 F.2d 963 (7th Cir. 1972), and

NLI3 ov. Denham, 469 F.2d 239 (9th Cir. 1972), on

identical grounds. 411 U.S. 912 (1973); 411 i.S.

94 (19/73). Like the instant case, baclirodt

and Denham had relied on Burns in upholding

the unilateral change portion of the board's

order. See 468 F.2d at 909; 469 F.2d at 240-

47. wvacurodt has been reaffirmed by the board,

205 N.L.R.B. No. 784 (1973), and subsequently

enforced by the Seventh Circuit, 515 F.2d 512

(1975) (unnublished order), cert. denied, 423

U.S. 927 (1975).

e)j@=

Altiougin we agree with the Board that the

Company's unilateral changes in conditions of

emplcyment on September 4 constituted an unfair

labor practice under the teachings of Burns, we

believe the Burns’ doctrine on this point re-

quires further explanation. On the issue of

unilateral changes, the language of Burns which

has caused confusion is as follows:

Although Burns had an obligation to

bargain with the union concerning wages

and other conditions of employment when

the union requested it to do so, this

case is not like a §8(a)(5) violation

where an employer unilaterally changes

a concition of employment without con-

sulting a bargaining representative,

It is difficult to understand how Burns

coula be said to have changed unilaterally

any pre-existing term or condition of em-

ployment without bargaining when it had

no previous relationship whatsoever to

the bargaining unit and, prior to July l,

no outstanding terms and conditions of

employaent from which a change could be

inferred. The terms on which Burns hired

employees for service after July 1 may

nave differed from the terms extended by

Wackenhut and required by the collective-

bargaining contract, but it does not fol-

low that Burns changed its terms and con-

ditions of employment when it specified

tue initial basis on which employees were

hired on July 1,

Although a successor employer is or-

dinarily free to set initial terms on which

it will hire the employees of a predecessor,

there will be instances in which it is per-

fectly clear that the new employer plans

to retain all of the employees in the unit

anc in which it will be appropriate to have

him initially consult with the employees’

«==

bargaining reyresentative before ne fixes

terms. In otier situations, however, it

may not be clear until the successor en-

ployer has hired his full complement of

employees that he has a duty to bargain

with a wiion, since it will not be evident

until then that the bargaining represen-

tative represents a majority of the em-

ployees in the unit as required by §9(a)

of the Act, 29 U.S.C. §159(a). 40 U.S.

at 294-95.

We construe Burns as relating to the timing

of the changes — whether they predate or postdate

the commencement of the duty to bargain. As soon

as the duty to bargain arises, the successor

company cannot institute changes without con-

sulting with the union. As the Seventh Circuit

hela in Bachrodt:

Once the duty to bargain is triggered,

a successor employer's responsibilities

are akin to those of an ordinary employer

prior to the negotiation of a formal labor

contract but after a bargaining represen-

tative has been selected when he has the

duty to bargain and, the corollary duty,

not to institute changes without con-

sulting the union. 460% F.2d at 969.

Under Burns, the successor employer can set

the initial terms upon which rehiring is conditional

provided that takes place before the duty to bar-

gain arises. Generally, an otherwise successor

can set the initial terms unilaterally without

violating the Act since prior to the rehiring of

his predecessor's employees, which constitute the

majority of his work force in an appropriate unit,

there is no duty to bargain. See Nash, Successor-

ship After urns, 7 Ga. L. Rev. 664, 671 (1973);

Pate, The Impact of Buras, 7 Ga. L. Rev. 637, 693-

694 (1973) [hereinafter cited as Pate]; Note, The

=

Bargaining Obligations of Successor Employers, 88

iiarv. L. Rev. 759, 778 (1975). The only instance

in which the duty to bargain may precede the for-

mal reniring of employees is where “it is per-

fectly clear" the otherwise successor plans to

retain a sufficient number of his predecessor's

employees so that the union's majority status

will continue. See Pate, supra at 694; Note,

Contract Rights and The Successor Employer: The

Impact of Burns Security, 71 Mich. L. Rev. 571,

530 (1973).

In Burns, the duty to bargain did not mature

until late June, at a time when the successor had

hired the requisite complement of his predecessor's

employees. The Court, however, rejected the union's

challenge to changes in working conditions uni-

laterally instituted by Burns in July since they

had been incorporated in the initial employment

contracts in early June, and thus necessarily

predated the duty to bargain. Accordingly, these

changes were merely initial terms set by the

Successor.

In the present case, when the changes were

instituted by the Company on September 4, there

aiready existed a duty to bargain with the in-

cumbent union. Not only was the Company's oper-

ational structure and practice the same as it

was before tine transfer of ownership, but the

Company had hired, prior to instituting the

changes, the employees of its predecessor, which

constituted the majority of its work force. The

Burns court has approved these factors. In Burns

tic lower court relied on these elements in deter-

mining a successor status:

"All of the important factors which the

Board has used and the courts have approved

are present in the instant case: ‘'continu-

ation of the same types of product lines,

departmental organization, employee identity

and job functions.’ . . . Both Burns and

ae

Wackenlut are nationwide organizations;

boti performed the identical services at

the same facility; although Burns used

its own supervisors, their functions and

responsibilities were similar to those

performed by their predecessors; and

finally, and perhaps most significantly

Burns commenced performance of the contract

with 27 former Wackenhut employees out of

its total complement of 42." 441 F. 2d

911, 915 (1971) (citation omitted). Although

the labor policies of the two companics

differed somewhat, the Board's determination

that the bargaining unit remained approp-

riate after the changeover meant that Burns

would face essentially the same labor re-

lations environment as Wackenhut: it would

confront the same union representing most

of the same employees in the same unit.

406 U.S. at 280, n. 4

Assuming arguendo, that the formal rehiring

took place after September 4, it appears, never-

theless, that a duty to bargain existed when the

unilateral changes were instituted. The record

establishes that it was “perfectly clear" in

early August that the Company intended to rehire

a sufficient number of employees to maintain the

Union's majority status. Del Spitzer informed

the employees that he "(wanted] every man to -

stay on the job, and would carry on as usual",

Consequently, there is sufficient evidence to

support a duty to bargain which preceded the

formal rehiring of the East Town employees,

Aoreover, there is nothing to indicate that the

employees were aware of the proposed changes in

early August; accordingly, these changes can not

be considered as initial terms of rehiring under

Burns. See Bachrodt, 463 F. 2d at 969.

-9-

The Second Circuity, relying on the Board's

decision in Spruce Up Corp., 209 N.L.R.B. No. 19

(1974), has considered the "perfectly clear"

exception where the initial terms were announced

prior to or simultaneously with the invitation

to the predecessor's employees. Brotherhood

of Railway v. REA Express Inc., 523 F. 2d 164,

171 (1975). The court limited the exception to

where the:

{[Nlew employer has either actively

or by tacit inference, misled employees

into believing they would all be re-

tained without change in their wages,

hours, or conditions of employment, or

at least to circumstances where the new

employer, unlike the Respondent here,

has failed to clearly announce its in-

tent to establish a new set of con-

ditions prior to inviting former en-

ployees to accept employment.

Without commenting on the acceptance of this

limitation by this court, we believe the facts

in the instant case are sufficient, neverthe-

less, to establish that the employees were mis-

led by “tacit inference" into believing they

would be retained without change in the con-

ditions of employment. Here, the employees

were told the Company would "carry on as usual."

Qur reasoning in the instant case is con-

sistent with our decision in NLRB v. Wayne Con-

valescent Center Inc., supra. Although the

changes instituted by Wayne occurred one mouth

after accuiring the nursing home,the duty to

bargain did not arise until after the changes

were instituted — formal rehiring occurred

after the changes were made. Moreover, it was

not “perfectly clear" that Wayne planned to re-

tain a sufficient number of employees to continue

@1Qe

-

the union's majority status. At the time of the

changes it was unclear whether tlhe new owners

were planning to continue the nursing home facility

or convert the premises to a "bed and board

facility". Consequently, the changes in con-

ditions of employment were merely initial terms

of employment. 465 F. 2d at 1042, n. 6.

We further conclude that all other parts of

the decision of the Board are supported by sub-

stantial evidence on the record considered as a

wiiole,.

Accordingly, the decision of the Board is

enforced.

alle

219 NLRL No. 2 D=--147

Akron, Ohio

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

SPITZERK AKRON, INC.

and Case 8-CA-6177

ALTO MECHANICS LOCAL 1363,

DISTRICT 54 OF THE INTERNATIONAL

ASSOCIATION OF MACHINISTS AND

AEKOSPACE WORKERS, AFL--CIO

SECOND SUPPLEMENTAL DECISION AND ORDER

On January 26, 1972, the National Labor Re-

lations Board issued its Decision and Order 1/

in the above-entitled proceeding, finding that

Respondent had engaged in and was engaging in

unfair labor practices in violation of Section

3(a)(5) and (1) of the Act and ordering that

it cease and desist therefrom and, upon request,

bargain collectively with the Auto Mechanics

Local 1363, District 54 of the International

Association of Machinists and Aerospace Workers,

AFL--CLO, herein referred to as the Union, as

the exclusive representative of all employees

in an appropriate unit. The Board also ordered

Respondent, upon request, to cancel any clianges

of benefits or working conditions which it made

on September 4, 1970, or later, which may have

resulted in financial or other detriment to its

employees. Finally, the Board ordered the Re-

spondent to offer reinstatement to those strikers

to whom it had not heretofore made an uncondi-

tional offer of reinstatement immediate and full

17-195 NLRB 114,

-— mew ee wees oe

reinstatement to their former or substantially

equivalent jobs, and to make whole all employees

who went on strike on September 22, 1970, for

any loss of earnings they may have suffered from

the time of their unconditional offer to returm

to work to the date that the Respondent offered

chem reinstatement. In light of the Supreme

Court's opinion in N.L.R.B. v. Burns International

Security Services, Inc., 406 U.S. 272 (1972), and

N.L.R.B. v. Wayne Convalescent Center, Inc., 465

F. 2d 1039 (C.A. 6, 1972), enforcement of the

Board's Order was granted on November 27, 1972,

by the United States Court «sf Appeals for the

Sixth Circuit. 2/ Subsequently, Respondent

petitioned the Supreme Court of the United

States for certiorari, and on May 14, 1973, the

Supreme Court granted Respondent's motion, vacated

the court of appeals’ judgment, and remanded the

proceeding to that court with instructions to

remand the case to the Board for such further

proceedings as may be appropriate, in the light

of N.L.R.B. v. Burns International Security

Services, Inc., 406 U.S. 272 (1972); Federal Trade

Commission v. Sperry & Hutchinson Co., 405 U.S.

233, 245--250 (1972);Securities Exchange Commission

v. Chenery Corp., 318 U.S. 80, 87-88 (1943);

Bachrodt Chevrolet Co. v. N.L.R.B., 411 U.S. 912

(1973); Denham Co. v. N.L.R.B., 411 U.S. 945 (1973).

On August 15, 1973, the court of appeals

issued an unreported order which remanded the

case to the Board “for such further proceedings

as may be appropriate" in light of the cases

cited in the order of the Supreme Court,

The Board reconsidered the case and through

an inadvertent oversight failed to notify Re-

spondent Spitzer Akron that the case had been

redocketed or to afford it an opportunity to

participate. Thereafter tine board issued its

Supplemental Vecision and Order in which it

adhered to its previous finding that Spitzer

2/ 470 F.2d 1000,

-lj5-

Akron had violated Section 8(a)(5) of the Act

and determined that "(NJothing in Burns requires

the Board to change these findings.” 3/ The

Supplemental Decision and Order reaffirmed

"the findings, conclusions, and remedy" of

the original Decision and Order.

On October 14, 1974, the Sixth Circuit

Court of Appeals issued an order stating:

Implicit in the instructions accom-

panying the remand of the case to the Board

was a requirement that the petitioner be

given notice of the reconsideration of the

case by the Board with an opportunity to

present its views on the meaning of the

Supreme Court opinions referred to therein

and the applicability to the facts of this

case thereto, together with the right to

petition to reopen proof in the case if

it desired to do so. By not affording

petitioner an opportunity to be heard and

to participate in the reconsideration, the

Board has failed to comply with the mandate

of this court. [504 F.2d 28, 29.]

Accordingly, the court of appeals granted the

petition for review and denied the Board's cross-

application for enforcement of the Board's Order.

The Supplemental Decision and Order of the Board

entered on January 25, 1974, was set aside and

the case was remanded to the Board for further

proceedings consistent with the provisions of

the circuit court's order.

On December 10, 1974, the Board received a

memorandum from Respondent presenting "its views

on tie meaning of the Supreme Court opinions

referred to therein and applicability to the

facts of this case thereto." Also, Respondent

noted, “Incorporated herein as part of this

memorandum is the respondent's exceptions filed

3/203 NLRB No. 80 (1974).

elie

——

- ee rps tee ae => —

with the Board prior to the issuance of the

Board's decision reported in 195 NLRB No. 24,

respondent's brief filed in the United States

Court of Appeals (6th Circuit) in Case No.

72-1187, 470 F.2d 1000, respondent's petition

for a writ of certiorari filed with the United

States Supreme Court and reported at 411 U.S.

979 (1973), and respondent's brief filed before

the United States Court of Appeals (6th Circuit)

in Case No. 74-1151."

Pursuant to the provisions of Section 3(b) of

the National Labor Relations Act, as amended, the

National Labor Relations Board has delegated its

authority in this proceeding to a three-member

panel.

In its original Decision and Order in this

case, the Board found that Respondent had violated

Section 8(a)(5) and (1) of the Act by making uni-

lateral changes of wages and working conditions

of employees in the appropriate unit on September

4, 1970, and by thereafter failing and refusing,

on request, to recognize, meet, and bargain with

the Union with respect to rates of pay, wages,

hours of employment, and other terms and con-

ditions of employment of emplovees in the unit.

As noted above, on November 27, 1972, the Sixth

Circuit Court of Appeals ordered that the decision

of the Board be enforced, stating:

We conclude that there is substantial

evidence to support the conclusion of the

Board that Spitzer Akron was a successor

employer and was obligated to bargain with

the Union as a representative of the pred-

ecessor employer, all of whom were employed

by Spitzer Akron. N.L.R.B. v. Burns Inter-

national Security Services, Inc., 406 U.S.

272 (1972); N.L.R.B. v. Wayne Convalescent

Center, Inc., 4l5 F.2d 1039 (6th Cir. 1972).

We further conclude that all other parts

of tice decision of the board are supported

-l5<-

by substantial evidence on the record con-

sidered as a whole. [470 F.2d at 1001].

The Board has again reviewed the record duly

considering the Respondent's memorandum in the

light of Burns and we adhere to our original find-

ings. In “this regard, the Board originally found

that the Respondent is a successor employer to

East Town and obligated to recognize and bargain

with the Union as the collective-bargaining rep-

resentative of the unit employees. The Board,

therefore, found that the Company had violated

Section 8(a)(5) and (1) of the Act by unilater-

ally changing the wages and working conditions

of employees on September 4, 1970, and by there-

after refusing, on request, to recognize and

bargain with the Union. 4/ Finally, the Board

concluded that the subsequent strike by the

employees on September 22, 1970, was an unfair

labor practice strike, caused by the Company's

unlawful refusal to bargain, and that the stri-

kers were entitled to unconditional reinstate-

ment upon their application to return to work

on March 26, 1971. The Board's Order directs

the Company to cease and desist from making

unilateral changes in terms and conditions of

employment and to bargain with the Union on

vequest. The Order further requires the Company

to offer each striker to whom it has not made

an unconditional offer of reinstatement in-

mediate and full reinstatement to his former

job or a substantially equivalent position,

and to make whole all its employees who went

on strike for any loss of earnings they have

suffered from the time of their unconditional

application for work on March 26, 1971, until

such time as the Company unconditionally offers

them reinstatement,

4/ Member Jenkins joined in the unanimous 3-to-0

decision that the Company violated Sec. 8(a)(5)

and (1) of the Act; he added that he did not rely

on the Trial Examiner's conclusion that the Company ©

had “no ‘good faith doubt'” of the Union's majority.

-l6-

The facts as found by the Board and sustained

by the circuit court show that the Company con-

tinued its predecessor's operation in substantially

unchanged form; that, prior to assuming control, it

indicated an intention to retain the predecessor's

employees, and that it effectuated this intention

by taking over 10 of 11 of the predecessor's work

force in the portion of business which the Company

decided to operate.

In this regard, and as noted in our earlier

decision, the Respondent is engaged in the business

of retail and wholesale selling and servicing of

automobiles, parts, and accessories. In 1964,

Local 762 of the Machinists, a predecessor local

of the Charging Union, entered into a multi-

employer agreement with certain automobile

dealers, including Arnett Chrysler-Plymouth, a

predecessor of East Town Chrysler-Plymouth.

Respondent thereafter leased the premises that

were occupied by Arnett Chrysler-Plymouth and

East Town Chrysler-Plymouth,

The collective-bargaining agreement was to

expire in 1967 but was extended to August 31,

1970. East Town Chrysler=-Plymouth was not sig-

natory to the contract of September 1964, nor

to its amendments. On August 27, 1968, the Union

and East Town Chrysler-Plymouth entered into a

separate agreement which also expired on August

31, 1970,

On August 13, 1970, East Town Chrysler-Ply-

mouth formally terminated said contract by letter

to the Union, and on the same date sent a letter

to Chrysler Corporation terminating its franchise

as an official Chrysler-Plymouth dealer, effective

August 22.

The record further shows that in April 1970

representatives of Spitzer Management began

negotiating for the purchase of certain assets

of East Town Chrvsler=Plyvmouth, and these nego-

-l7-

tiations were concluded on September 4, 1970,

5 days after the expiration of the bargaining

agreement. The negotiations between Spitzer

Akron and East Town or Chrysler Corporation

were culminated on September 4, 1970, and, as

part of that agreement, Spitzer was to pay

retroactively to September 1, 1970, those

employees retained, Substantially all of the

employees in the bargaining unit under the

previous contract were retained by Spitzer

Akron. At a meeting wht the employees on

September 4, 1970, wage scales and benefits

were established by Spitzer Akron which were

greater than the previous rates paid under the

expired contract.

We noted in our original Decision and Order

that the employing industry has been continued by

Respondent in essentially the same form and scope

as it was before the transfer of ownership, so

that it would appear prima facie that Respondent

legally succeeds to any bargaining obligation of

its predecessor created by the Act. We then con-

clude that the continuity of the employing enter-

prise was not substantially disturbed or its

nature changed during its interim operation by

Chrysler, which was trying to operate it as a

viable and tius a saleable business, until such

time as Spitzer interests or some other entre-

preneur tool it over. Therefore, the Respondent

tuok over a going business, not a defunct or

liquidated one, and it follows that its bargain-

ing obligation as a successor employer continued.

Nothing in Burns requires the Board to changes

these findings. Accordingly, we affirm them.

Additionally, we affirm our earlier finding that

Respondent was not reasonably justified by ob-

jective circumstances in doubting the Union's

majority status on September 14, 1970, and that

Respondent further refused on and after that date

to bargain with the Union in violation of Section

8(a)(5) and (1) of the Act.

-18-

In our earlier opinion, we also found that

Respondent violated Section 8(a)(5) of the Act

when it made unilateral chanyes of wages and

certain working conditions of the employees in

the bargaining unit.

In Burns, the Supreme Court held that in

the ordinary situation a successor employer is

free unilaterally to set initial terms on which

it will hire the employees of a predecessor,

since, until the successor employer has hired

his full complement of employees, it may not

be clear that the union represents a majority

of the employees in the unit. However, the

Court also stated that:

[T]here will be instances in which it

is perfeetly clear that tie new employer

plans to retain all of the employees in

tine unit and in which it will be approp-

riate to nave hin initially consult wita

the employees’ bargaining representative

before he fixes terms. In other situations,

however, it may not be clear until the

successor emplover has hired his full

complement of emplovees that he has a

duty to bargain with a union, since it

will not be evident until then that the

bargaiuing revresentative represents a

majority of the emplovees in the unit as

required bv §9(a) of the Act, 29 U.S.C.

§loY(a). [406 U.S, 294--295.]

Clearly, the prrase "plans to retain all the emn-

ployees in the unit," when read in the light of

the sentence which follows, would cover not only

the situation where the successor's plan includes

every employee in tire unit, but also situations

where it ducludes a lesser number but still

enough to make it evident that the union's

majority status will coutinuc. The instant

case is one of the type referred to by the

Suvrem Court in tie aboveequoted Llanjuave.

aiGe

The evidence indicates that the work force

was hired by Respondent prior to the announcement

of the changes, and that such changes had not

been a part of the initial terms of rehiring.

In operating the dealership, Respondent has been

conducting the same business (with the exception

of the auto body repair and paint shop) as East

Town, using 10 of the 11 men in the East Town

work force. When Del Spitzer visited the agency

early in August 1970, in connection with family

plans for buying the business, he told mechanic

John Hall tiaat the Spitzers planned to buy the

agency, and would need good mechanics. When

Hall suggested that he keep all the East Town

mechanics, Spitzer replied that he had checked

on them, found they were good men, and "I want

every man to stay on the job, and we will carry

on as usual,”

On the evening of September 4, 1970, shortly

after Respondent had consummated the purchase of

assets from East Town, John and Del Spitzer

assembled and talked to the employees at the

agency. - Del Spitzer explained the family oper-

ations in developing dealer franchises, and said

the Spitzers had taken over the Chrysler-Plymouth

franchise there. He announced that the employees

would receive extra pay in their paychecks coming

out that day. He also described the Spitzer

hospital benefit plan, saying it was better

than the plan which the men already had from

the Union; he said Respondent would pay one-

half of the hospital insurance premiums, as

well as one-half of their uniform expenses,

and would give them six paid holidays a year,

and a weck of paid vacation after a year of

service. At the close of his remarks, Spitzer

asked for questions, but there were none from

the men, nor was there any discussion of the

Union or its current benefits. Union Steward

Andy Parks reported the Spitzer remarks at

@20=

once to Ramnytz, business agent of the Union,

who said he would contact Respondent about a

contract. Ramnytz visited the agency on Sep-

tember Y¥, and told Alan Spitzer, Norman

Hamilton, an officer of Spitzer Management,

Tnc., and Service Manager Richard Wolfe that

the Union represented the employees and wanted

a contract. Spitzer said that, after his talk

with the men on September 4, he doubted very

much that the East Town employees wanted to

“continue with the Union," and suggested that

the Union sould have a Board election, and,

if the employees indicated they wanted the

Union, he would be glad to negotiate a contract

with it.

We find that when Respondent took over the

business on September 4 it had completed hiring

its work force, which consisted of approximately

10 employees, substantially all of whom had for-

merly worked for East Town. Under the teaching

of Burns, Respondent had a bargaining obligation

as a successor to East Town. The Respondent's

position on that date was akin to that of an

employer confronted with a newly selected bar-

gaining representative. It was not free there- ~

after to establish or change conditions of employ-

ment without bargaining with the Union. 5/

Moreover, from the facts detailed above, it

is apparent that as of September 4 Respondent had

planned to and had, indeed, retained substantially

all of the employees in the unit and at such time

"ic was appropriate to have him initially consult

with the employees’ bargaining representative

before he fixe[d] terms." As noted, the Union

made its first bargaining demand when its rep-

resentative visited the agency on September 9,

stating that the Union represented the employees

and wanted a contract. Thus, it is clear that

57 Ranch-Way, Inc., 203 NLRB 911 (1973)

Respondent planned to, and did, retain virtually

all of its predecessor's employees in the unit,

and that these employees were represented by tie

Union anu coustituted a majority of the unit both

before and after tic transfer of ownership.

In its memorandun, the Company contends that

the second major issue is whether Respondent failed

to bargain in good faith by requesting that the

Union seek a Board-conducted election. In this

regard, the Board is mindful that under the holding

of Joy Sill. tills, inc. v. N.L.R.B., 185 F.2d 732

(C.A.D.C., 1950), cert. denied 341 U.S. 914 (1951),

an employer may refuse to bargain and insist on a

representation election when motivated by a good-

faith doubt as to the union's majority status.

The question whether that doubt is a bona fide

one is examined in light of all the facts and

circumstances relating to the case.

After another review of the record, we find

no objective facts to support the Company's

asserted doubt of majority. Mere passage of

tine since the certification and the possibility

of employee turnover in the interim provide no

reasonable basis for doubting the Union's con-

tinued majority. On the contrary, recognition

of the bargaining representative over a number

of years and execution of bargaining agreements

by two successive operators of the dealership,

without challenge, support rather than rebut the

presumption of continuing majority status. Tix

Union was not required to reestablish its majority

through a board-conducted election on the proffer

of new authorization cards, and no adverse in-

ference may be drawn from its failure to do so.

Further, the Company's unilateral changes on

September 4 and the failure of the employees to

protest them as a derogation of the Union do not

provide a reasonable good-faith basis for doubting

o2%e

the Union's majority. We agree with the Adminis-

trative Law Judge that mere silence of unit em-

ployees about the Union or their adherence to it

when hearing wage raises and other increased

benefits announced for the first time is an

equivocal circumstance which falls far short

of any reasonable indication that the employees

no longer desired union representation; even

if that inference could be justified on any

theory, any disaffection of the employees at

that point could well be attributed to the

coercive effects of a sudden unilateral grant

of increased wages and benefits which violated

both Section 8(a)(5) and (1) of the Act.

Moreover, the record affirmatively shows

the employees’ adherence to the Union and the

Company's awareness of their support. Thus, in

the week before the Company's refusal to bargain

and the resulting strike, Service Manager Wolfe

referred to the operation as a “union shop,"

whereupon the employees responded that if they

did not get a “union contract" they would “hit

the bricks." Also, testimony of Union Steward

Andy Parks shows that about September 13 or 14

Sales Manager Guy announced to Parks that he

was going to discharge two unit employees be-

cause they could not do their work. He asked

Parks for his comment, and Parks replied he

(Guy) had a right to discharge anyone he wanted

to at any time, but that Parks would have to

report it to the business agent of the Union

and "You can take it from there." Neither

employee was discharged. Finally, immediately

after the Company's refusal to bargain, the

employees voted to strike, and 10 out of a unit

of 12 or 13 employees joined the strike and

walked the picket line. When Business Agent

Ramnytz met with President Spitzer after the

onset of the strike and again urged recognition

of the Union, asserting that the employees still

wanted it to represent them, Spitzer did not

o29=

question the Union's majority, but merely

expressed the view that the employees did not

need a union, Accordingly, we find the

Respondent's “alleged ‘good faith’ doubt of

the union's majority representation" is with-

out the support of any objective circumstances,

As we earlier found and as the circuit

court earlier agreed, there is no indication

that unconditional offers of reinstatement

were ever made to the other eight strikers.

Our Order requires the Company to offer each

striker to whom it has not made an unconditional

offer of reinstatement immediate and full re-

instatement to his former job or, if that job

no longer exists, to a substantially equivalent

position, and to make whole all its employees

who went on strike for any loss of earnings

they have suffered from the time of their un-

conditional application for work on March 26,

1971, until such time_as the Company uncon-

ditionally offers them reinstatement. Accord-

ingly, we reaffirm the findings, conclusions,

and remedy provided in our original Decision

and Order.

The Comoaiv's memorandum states the third

major issue for cousideration concerns the matter

of reinstatement and entitlement to backpay. We

have reviewed the record in light of the Company's

position and we reaffirm the remedy provided in

our original Decision and Order.

On March 26, 1971, the Union notified the

Company, by letter, that all 1) strikers, who

were named in the letter, offered unconditionally

to return to work. The Company subsequently sent

a letter to all the strikers, requesting that

they report in person. When eight of the strikers

reported to Alan Spitzer, Spitzer told them that

he was unable to interview them that night with-

out the presence of the service director. Arrange-

ments were made to interview the reporting stri- =

kers when they appeared for picket duty the fol- vom we, NOES —

lowing day. In subsequent interviews, Alan

Spitzer announced that the strikers would have

to make out new employee application forms before

tiey could be hired, since they were considered

Dated, Washington, D.C. JUL 9 1975

Howard Jenkins, Jr.,Member

new employees. The strikers rejected Spitzer's Memb

condition that they return to work as newly Ralph E, Kennedy, ember

hired employees and continued the strike. There- (SEAL) sactouss taben teLaTioNs noane

after, union counsel received a letter from the

Company's attorney stating that the strikers

were not being considered as new employees, and

that the Company wanted tiem to fill out the

employment forms merely to determine on what

date they would be available to return to work.

Subsequently, two employees returned to work.

Ihe

=-2 5-

’

SPITZER AKRON, INC. v. NATIONAL LABOR RE-

LATIONS BUARD, No. 74-1151, October 14, 1974

This case is before the court on a petition

to review and set aside the supplemental decision

of the National Labor Relations Board of January

25, 1974 reported at 203 NLRB No. 80. Enforce-

ment of a previous decision and order of the Board

in this case was granted by this court in an order

reported at 470 F, 2d 1000 (1972). Subsequently,

upon application of the petitioner herein, the

Supreme Court granted certiorari, vacated the

judgment and remanded the case to this court

“with instructions to remand case to the National

Labor Relations Board for such further proceed-

ings as may be appropriate in light of Burns

International Security Services, Inc. v. NLRB,

406 U.S. 272 (1972). FIC v. Sperry & Hutchinson

Co., 405 U.S. 233, 245-250 (1972); SEC v. Chenery

Corp., 318 U.S. 80, 87-88 (1943); Bachrodt Chev-

rolet Co. v. NLRB, 411 U.S. 912 (1973); Denham v.

NLRB, 411 U.S. 945 (1973)." 411 U.S. 979, 93

S. Ct. 2272, 36 L. Ed. 2d 955 (1973). In com-

pliance with the mandate of the Supreme Court,

on August 15, 1973 this court entered an un-

reported order remanding to the Board "for such

further proceedings as may be appropriate" in

light of the cases cited in the order of the

Supreme Court.

The Board proceeded to reconsider the case

without notifying the petitioner Spitzer Akron

that the case had been redocketed or affording

it an opportunity to participate in any way.

Thereafter the Board issued its supplemental

decision in which it adhered to its previous

finding that Spitzer Akron had violated Section

8(a)(5) of the National Labor Relations Act and

determined that “[NJothing in Burns requires the

Board to change these findings." The supple-

mental decision reaffirmed "the findings, con-

clusions, and remedy" of the original decision

and order.

Implicit in the instructions accompanying

the remand of the case to the Board was a re-

quirement that the petitioner be given notice

of the reconsideration of the case by the Board

with an opportunity to present its views on the

meaning of the Supreme Court opinions referred

to therein and applicability to the facts of

this case thereto, together with the right to

petitior. to reopen proof in the case if it

desires to do so. By not affording petitioner

an opportunity to be heard and to participate

in the reconsideration, the Board has failed

to comply with the mandate of this court.

The petition for review is granted, and

the cross-application for enforcement filed by

the Board is denied. The supplemental decision

and order of the Board entered on January 25,

1974 is set aside and the case is remanded to

the Board for further proceedings consistent

with the provisions of this order.

200 NLRB No. 80 D-8211

Akron, Ohio

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

SPITZER AKRON, INC.

and Case 8-CA-6177

AUTO MECHANICS LOCAL 1363,

DISTRICT 54 OF THE INTERNATIONAL

ASSOCIATION OF MACHINISTS AND

AEROSPACE WORKERS, AFL-C1O

SUPPLEMENTAL DECISION AND ORDER

On January 26, 1972, the National Labor Re-

lations Board issued its Decision and Order 1/

in the above-entitled proceeding, finding that

Respondent had engaged in and was engaging in

unfair labor practices in violation of Section

8(a)(5) and (1) of the Act and ordering that

it cease and desist therefrom and, upon re-

quest, bargain collectively with the Auto

‘Mechanics Local 1363, District 54 of the

International Association of Machinists and

Aerospace Workers, AFL-CIO, herein referred

to as the Union, as the exclusive represen-

tative of all employees in an appropriate

unit. The Board also ordered Kespondent,

upon request, to cancel any changes of bene-

fits or working conditions which it made on

September 4, 1970, or later, which may have

resulted in financial or other detriment to

its employees. Finally, the Board ordered

the Respondent to offer reinstatement to

tiose strikers to whom it had not heretofore

made an unconditional offer of reinstatement,

1/ 195 NLRB 114,

immediate and full réinstatement to their

former or substantially equivalent jobs, and

to make whole all employees who went on strike

on September 22, 1970, for any loss of earnings

they may have suffered from the time of their

unconditional offer to return to work to the

date that the Respondent offered them rein-

statement. In light of the Supreme Court's

opinion in N.L.R.B. v. Burns International

Security Services, Inc., 406 U.S. 272 and

N.L.R.B. v. Wayne Convalescence Center, 465

1081), salevedibat "2 the Board's Order was

granted on November 27, 1972, by the United

States Court of Appeals for the Sixth Cir-

cuit. 2/ Subsequently, Respondent petitioned

the Supreme Court of the United States for

certiorari, and on May 14, 1973, the Supreme

Court granted Recpondent''s uctten, vacated

the court of appeals’ judgment, and remanded

the proceedings to that court with instructions

to remand the case to the Board for such further

proceedings as may be appropriate, in the light

of Burns International Security Services, Inc.

v. N.L.R.B., 406 U.S. 272 (1972); FIC Vv. Sper

& Hutchinson Co., 405 U.S. 233, 245-250 C72),

SEC v. Chenery Corp., 318 U.S. 80, 87-88 (1943);

Bachrodt Chevrolet Co. v. N.L.R.B., 411 U.S.

912 (1973); Denham v. N.L.R.B., 411 U. s. 945

(1973).

On August 15, 1973, the United States

Court of Appeals issued an order which remanded

the case to the Board.

Pursuant to the provisions of Section

3(b) of the National Labor Relations Act, as

amended, the National Labor Relations Board has

delegated its authority in this proceeding to a

three-member panel.

2/ F.2d (C.A. 6) (No. 72-1187).

-29-

In its original decision in this case, the

Board found that Respondent had violated Section

8(a)(5) and (1) of the Act by making unilateral

changes of wages and working conditions of em-

ployees in the appropriate unit on September 4,

1970, and by thereafter failing and refusing on

request, to recognize, meet, and bargain with

the Union with respect to rates of pay, wages,

hours of employment, and other terms and con-

ditions of employment of employees in the unit,

In the light of Burns, the Board adheres

to its findings that Respondent violated Section

8(a)(5) by making unilateral changes of wages

and wroking conditions on September 4, 1970,

and by refusing on request to recognize, meet,

and bargain with the Union, as set forth here-

inafter.

The Respondent is engaged in the business

of retail and wholesale selling and servicing

of automobiles, parts, and accessories.

In 1964, Local 762 of the Machinists, a

predecessor local of the Charging Union, entered

into a miltiemployer agreement with certain

automobile dealers including Amett Chrysler-

Plymouth, a predecessor of East Town Chrysler-

Plymouth. Respondent thereafter leased the

premises that were occupied by Amett Chrysler-

Plymouth and East Town Chrysler-Plymouth,

The Collective-bargaining agreement was to

expire in 1967 but was extended to August 31,

1970. East Town Chrysler-Plymouth was not

signatory to the contract of September 1964,

nor to its amendments. On August 27, 1968,

the Union and East Town Chrysler-Plymouth

entered into a separate agreement which also

expired on August 31, 1970.

On August 13, 1970, East Town Chrvsler-

Plymouth formally terminated said contract by

letter to the Union, and on the same date sent

ata

a letter to Chrysler Corporation terminating

its franchise as an official Chrysler-Plymouth

dealer, effective August 22.

In April 1970, representatives of Spitzer

Management began negotiating for the purchase

of certain assets of East Town Chrysler-Plymouth,

and these negotiations were concluded on September

4, 1970, 5 days after the expiration of the bar-

gaining agreement. The negotiations between

Spitzer Akron and East Town or Chrysler Cor-

poration were culminated on September 4, 1970,

and, as part of that agreement, Spitzer was to

pay retroactively to September 1, 1970, those

employees retained. Substantially all of the

employees in the bargaining unit under the

previous contract were retained by Spitzer

Akron. At a meeting with the employees on

September 4, 1970, wage scales and benefits

were established by Spitzer Akron which were

greater than the previous rates paid under the

expired contract.

We noted in our original Decision that the

employing industry has been continued by Respond-

ent in essentially the same form and scope as it

was before the transfer of ownership, so that it

would appear prima facie that Respondent legally

succeeds to any bargaining obligation of its pred-

ecessor created by the Act. We then conclude

that the continuity of the employing enterprise

was not substantially disturbed or ite nature

changed during its interim operation by Chrysler,

which was trying to operate it as a viable and

thus a saleable business, until such time as

Spitzer interests or some other entrepreneur

took it over. Therefore, the Respondent took

over a going business, not a defunct or liqui-

dated one, and it follows chat its bargaining

obligation as a successcr-employer continued.

Nothing in Burns requires the Board to change

these findings. Accordingly, we affirm then.

Additionally, we affirm our earlier finding that

Respondent was not reasonably justified by ob-

-3l-

?

jective circumstances in doubting the Union's

majority status on September 14, 1970, and that

Respondent further refused on and after that

date to bargain with the Union in violation of

Section 8(a)(5) and (1) of the Act.

In the earlier case, the Board also found

that Respondent violated Section 8{a)(5) of the

Act when it made unilateral changes of wages and

certain working conditions of the employees in

the bargaining unit,

In Burns, tie Supreme Court held that in

the ordinary situation a successor-employer is

free unilaterally to set initial terms on which

it will hire the emplovees of a predecessor,

since, until the successor-employer has hired

his full complement of employees, it may not

be clear that the union represents a majority

of employees in the unit. However, the Court

also stated that:

{[T]here will be instances in which it is

perfectly clear that the new employer

plans to retain all of the employees in

the unit and in which it will be approp-

riate to have him initially consult with

the employees’ bargaining representative

before he fixes terms,

The instant case is one of the type referred to

by the Supreme Court in the above-quoted language.

The evidence indicates that the work force

was hired prior to the announcement of the changes,

and that such changes had not been a part of the

initial terms of rehiring. In operating the dealer-

ship, Respondent has been conducting the same busi-

ness (with the exception of the auto body repair

and paint shop) as East Town, using 10 of the ll

men in the East Town work force. When Del Spitzer

visited the agency early in August 1970, in con-

nection with family plans for buying the business,

he told meciuanic Jolm Hall that the Spit-cers planned

-jJ=

to buy the agency, and would need good mechanics.

When Hall suggested that he keep all the East Town

mechanics, Spitzer replied that he had checked on

them, found they were good men, and "I want every

man to stay on the job, and we will carry on as

usual,"

On the evening of September 4, 1970, shortly

after Respondent had consummated the purchase of

assets from East Town, John and Del Spitzer assem-

bled and talked to the employees at the agency.

Del Spitzer explained the family operations in

developing dealer franchises, and said the Spitzers

had taken over the Chrysler-Plymouth franchise

here. He announced that the employees would re-

ceive extra pay in their paychecks coming out that

day. He also described the Spitzer hospital bene-

fit plan, saying it was better than the plan which

the men already had from the Union; he said Respon-

dent would pay one-half the hospital insurance prem-

iums, as well as one-half of their uniform expenses,

and would give them six paid holidays a year, and

a week of paid vacation after a year of service.

At the close of his remarks, Spitzer asked for

questions, but there were none from the men, nor

was there any discussion of the Union or its current

benefits. Union Steward Andy Parks reported the

Spitzer remarks at once to Ramnytz, business agent

of the Union, who said he would contact Respondent

about a contract. Ramnytz visited the agency on

September 9, and told Alan Spitzer, Norman Hamilton,

an officer of Spitzer Management, Inc., and Service

Manager Richard Wolfe that the Union represented

the employees and wanted a contract. Spitzer said

that, after his talk with the men on September 4,

he doubted very much that the East Town employees

wanted to "continue with the Union," and suggested

that the Union sould have a Board election, and,

if the employees indicated they wanted the Union,

he would be glad to negotiate a contract with it.

=39s

Accordingly, we reaffirm the findings, con-

We find that, when Respondent took over tie clusions, and remedy provided in our original

business on September 4, it had completed hiring Decision and Order. 4/

its work force, which consisted of approximately

lu employees, substantially all of whom had for- Dated, Washington, D.C. JAN 25 1974

merly worked for East Town. Under the teaching

of Burns, Kespondent had a bargaining obligation

as a successor to East Town. The Respondent's John H. Fanning, Member

position on that date was akin to that of an

employer confronted with a newly selected bar-

gaining representative. It was not free there- Howard Jenkins, Jr., Member

after to establish or change conditions of employ-

ment for unit emplovees without bargaining with the

Union. 3/ Ralph E. Kennedy, Member

Moreover, from the facts detailed above, it (SEAL) NATIONAL LABOR RELATIONS BOARD

is apparent that as of September 4, Respondent

had planned to, and had indeed retained substan-

tially all of the employees in the unit and at 4/ See Bachrodt Chevrolet Co., 205 NLRB No. 122

such time “it was appropriate to have him in-

itially consult with the employees’ bargaining

representative before he fixes terms.” As noted,

the Union made its first bargaining demand, when

its representative visited the agency on September

9, stating that the Union represented the employees

and wanted a contract. Thus, it is clear that

Respondent planned to, and did, retain virtually

all of its predecessor's employees in the unit,

and that these employees were represented by the

Union and constituted a majority of the unit both

before and after the transfer of ownership.

3/ Ranch-Way, Inc., 203 NLRB No. 118

ait

ORDER OF

THE SUPREME COURT

OF THE UNITED STATES

SPITZER AKRUN, INC. v. NATIONAL LABOR KE-

LATIONS BOARD, No. 72-1240, May 14, 1973.

The petition for a writ of certiorari is

granted. The judgment is vacated and the case

is remanded to the United States Court of Appeals

for the Sixth Circuit with instructions to remand

tne case to the National Labor Relations Board for

such further proceedings as may be appropriate, in

light of Burns International Security Services, Inc.

v. NLRB, 400 U.S. 272 (1972). FIC v. Sperry &

Hutchinson Co., 405 U.S. 233, 245-250 (1972); SEC

v. Chenery Corp., 315 L.S. 80, 87-88 (1943);

Bachrodt Chevrolet Co. v. NLRB, _U.S.__, (1973);

Denham v. NLRB, U.S. _‘ (1973). Page

-3iie-

HO. 72-1187

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

SPITZER AKRON, INC., ) FILED

) NOV 27 1972

Petitioner, JAMES A. HIGGINS, Clerk

Ve . ORDER

NATIONAL LABOR RELATIONS BOARD,

Respondent. )

Before PHILLIPS, Chief Judge, McCREE, Circuit

Judge, and CECIL, Senior Circuit Judge.

This case is before the court on the petition

of Spitzer Akron to review and set aside an order

issued by the Netional Labor Relations Board, and

on the Board's cross application for enforcement.

The Board's decision is reported at 195 N.L.R.B.

No. 24, Reference is made to the reported decision

of the Board for a detailed recitation of the facts.

We conclude that there is substantial evidence

to support the conclusion of the Board that Spitzer

Akron was a successor employer and was obligated to

bargain with the Union es the representative of the

predecessor employer, o11 of whom were reemployed

by Spitzer Akron. N.L.R.B. v. Burns International

Security Services, Inc., 406 U.S. 272 (1972); N.L.R.B.

v. Wayne Convalescence Center, __F.2d___ (6th Cir.

No. 72-1001) (Aug. 29, 1972).

We further conclude that all other parts of the

decision of the Board are supported by substantial

evidence on the record considered as a whole.

-3/]<

Tt is ORDERED thst the decision cf the Board

be cnforced.

Entered by order of the court.

/s/ James A. Higgins

CLERK

-38-

195 NLRB No. 24 D--5782

Akron, Ohio

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

SPITZER AKRON, INC.

and Case 8--CA--6177

AUTO MECHANICS LOCAL 1363,

DISTRICT 54 of the INTJRNATIONAL

ASSOCIATION OF MACHINISTS AND

AEROSPACE WORKERS, AFL--CIO

DECISION AND ORDER

On July 21, 1971, Trial Exanriner Eugene F. Frey

issued the attached Decision in this proceeding.

Thereafter, the Respondent and the General Counsel

filed exceptions and supporting briefs, and the

Respondent filed an answering brief.

Pursuant to the provisions of Section 3(b) of

the National Labor Relations Act, as amended, the

National Labor Relations Board has delegated its

authority in this proceeding to a three-member panel.

Tne Board has considered the record and the

Trial Examiner's Decision in light of the exceptions

end briefs 1 and hos decided to affirm the Trial

Examiner's rulings, findings, and conclusions and

to adopt his recommended Order, as modified herein.2/

l/ As the record, exceptions, and briefs in our opin-

ion adequately present the issues and the positions

of the parties, the Respondent's request for oral

argument is hereby denied.

2/ Member Jenkins does not rely on the Trial Examiner's

conclusion that Respondent had no "good faith doubt"

of the Union's majority.

195 NLRB No. 2k

-39-

D--5782

The Trial Examiner found that on September 22,

19/70, at least 10 out of about 12 or 13 employees

went on strike, that the strike was an unfair labor

practice strike, aud that the strike was still in

progress at the time of the hearing herein on Muy

17, 1971, with the sanction of the Union. On March

26, 1971, the Union notified the Respondent, by letter,

that all 10 strikers identified therein offered un-

conditionally to return to work.

The Respondent, subsequently, on an unspecified

date, sent letters to all strikers requesting that

they return to work. On an unspecified evening after

receipt of these letters, 8 of the 10 strikers, accom-

panied by Samuel Ramnytz, union business representative,

reported to Respondent's president Allen Spitzer,

whereby they were advised that he (Spitzer) was unable

to interview each of them that night without the

presence of the service director, who had left for

the evening. Arrangements were set up to interview

each of the strikers when they appeared for picket

duty the following day. During the course of these

interviews, Spitzer required the strikers to complete

and sign new employee application forms. Spitzer

advised Ramnytz that the strikers were new employees

and couldn't be hired without completing these appli-

cation forms. The strikers thereafter continued the

strike.

On an unspecified date, Union's counsel received

a letter from the Respondent's attorney stating that

the strikers were not required to execute new appli-

cation forms, explaining that the Respondent merely

wanted to determine when the strikers were available

to return to work. Subsequently, on an unspecified

date, some of the strikers arranged to return to

work during private interviews with Spitzer and his

essistant, Norman Hadton.

On a date that Andy Pork agreed to return to

work, he was ill end reported off sick. ‘Thereafter,

a later date for his return was arranged. However,

he subsequently fractured nis leg and was unable, as

o4)~

D--5782

of the hearing date, to resuue employment.

John Hall arranged to return to work on May 17,

1971, after receiving a letter on May 12, 1971, from

the Respondent offering him employment as a flat-rate

mechanic. However, Hall was unable to report to work

because he appeared as a witness on behalf of the

General Counsel on the date that he had arranged to

resume employment. At the conclusion of his testimony,

Hall agreed to report for work later that same after-

noon pursuant to the direction of the Respondent's

counsel. According to Ramnytz, some of the strikers

involved in the instant proceeding had actually re-

turned to work prior to the hearing.

In the portion of his Decision entitled "The

Remedy” the Trial Examiner set forth the proper

standard for determining entitlement to reinstatement

and backpay when he stated: “As Respondent employees

have been engaging in an unfair labor practice strike,

they are entitled to reinstatement upon their uncon-

ditional application for reinstatement, and to backpay

from the date of such application to the date of an

unconditional offer of reinstatement." However, he

then found that, although the September 22, 1970,

strike was en unfair labor practice strike, the unfair

lator practice strikers need not be offered reinstate-

ment because they remained on strike after receiving

letters from the Respondent requesting that they

return to work. We do not agree with the Triel Examiner

that the strikers need not be offered reinstatement.

When Spitzer required the strikers to sign an appli-

cation form as a new employee before he would return

them to work and notified Ramnytz that the strikers

were to be considered new employees, Respondent was

not making the unconditional offer of immediate rein-

statement contemplated by the Act. Indeed, rather

than absndon the strike end resume their employment

under this imposed condition, the strikers chose to

continue their strike egainst the Respondent. Accord-

ingly on the basis of the record evidence, we find

the strike was continued end prolonged as @ result

of the Respondent's insistence on the condition that

~41-

D--5762

tae strikers return to work a5 newly hired ewployces.

Siuce the Respondent's cffer of reiustatenent was not

uncondicionul, the strikers had no legal obligation

to resume work until such time as the Respondent

accedes to their demands or until they termiuate the

strike. Moreover, es unfeir labor practice strikers

they remain entitled to reinstatement without regard

to whether replacements have been placed in their

jobs and whether said reinstatement requires the

dismissal of such replacements.

We note, however, that some of the strikers

arranged to return to work after the Union was sad-

vised by the Respcndeat's counsel that said suppli-

cation forms were required merely to determine the

striker's aveilability for work, rather than to

condition their return as a newly hired employee.

In this regard, enployees Park and Hall received

subsequent unconditional offers from the Respondent

to return to work. Park agreed to resume his emplvuy-

ment, but he was prevented from doing so because of

an injury. Hall agreed to return to work during the

hearing. However, the evidence does not reveal

whether any of the other strikers received similer

unconditional offers of reinstatement, or whether

they have arranged, as did Hall and Park, to retura

to worke Since the Respondent's initial offer of

reinstatement was conditional and since the evidence

does not disclose that any strikers except Hell and

Park have received subsequent unconditional offers

of reinstatement, we find that the Trial Examiner

erred in concluding that the remaining strikers, if

any, need not be offered reinstatement. Accordingly,

we shall modify the Trial Examiner's recommended

Order and require Respondent to make unconditional

offcrs of reinstatement to the remaining strikers.

In this regard we find that the strikers’ uncon-

ditional offer to return to work on Morch 26, 1971,

relgins outstanding and it is not necessary that

they mke further application.

ikewise the Trisl Examiner's findiu that the

trikers are entitled to buckpey crly from the date

their uneenditional offer to rutura to work to

D--5782

the date they received Respondent's letters re-

questing they return to work is clearly erroneous.

For the Respondent's request by letter, although

unconditional, was superseded by its demand that

the strikers be interviewed and complete new em-

ployee applications. Thus, contrary to the Trial

Examiner's finding, the letters did not toll back-

pay. Therefore, the strikers are entitled to back-

pay from the date they unconditionally requested

reinstatement until the Respondent, in fact, uncon-

ditioually offers them reinstatement and we shell

so provide.

ORDER

Pursuant to Section 10(c) of the National Labor

Relations Act, as amended, the National Labor Relations

Board adopts as its Order the recommended Order of

the Trial Examiner and hereby orders that the Re-

spondent, Spitzer Akron, Inc., Akron, Ohio, its

officers, agents, successors, and assigns, shall

take the action set forth in the Trial Examiner's

recommended Order, as herein modified:

1. Add the following after paragraph 2(b):

"(c) Offer to each of those strikers to whom

it has not heretofore made an unconditional offer

of reinstatement immediate and full reinstatement

to his former job or, if that job no longer exists,

to a substantially equivalent position, without

prejudice to his seniority or other rights and

privileges, dismissing, if necessary, any replace-

ment employee.”

2. Substitute the following for the Trial

Examiner's paragraph 2(c) and reletter the sub-

sequent peragrephs accordingly:

"(d) Make whole all of its employees who went

on strike on September 22, 1970, for any loss of

earnings they may have suffered from the time of

their unconditional offer to return to work to the

date when Respondent unconditionally offers them

reinstatement to their former or substantielly

-43-

D--5762

p--57682

" APPENDIX

equivalent employment.

NOTICE TO EMPLOYEES

3- Substitute the attached notice for the

Trial fxaminer's notice. Posted by Order of the

National Labor Relations Board

Dated, Washington, D.C. JAN 26 1972 An Agency of the United States Government

WE WILL NOT make unilateral changes in wages,

rates of pay, hours of employment, or other terms

and conditions of employment of our employees in

John H. Fanning, Mentber the appropriate unit described below, or fail or

. refuse in any other manner to recognize, meet, or

bargain collectively with Auto Mechanics Local

1363, District 54 of the International Association

Howard Jenkins, Jr, Member of Machinists and Aerospace Workers, AFL--CIO, as

the exclusive bargaining representative of our

employees in said unit, which is described as follows:

Ralph E. Kennedy, Member All auto mechanics, body repairmen, psinters,

their apprentices and helpers, and lubrication

men, employed in our place of business in

NATIONAL LABOR RELATIONS BOARD Akron, Ohio, excluding all office clerical

’ employees, salesmen, parts department em-

(SEAL) ployees, garage men, and all guards, pro-

fessional employees and supervisors as de-

fined in the Act.

WE WILL NOT in any like or related manner inter-

fere with, restrain, or coerce our employees in the

exercise of any of the rights guaranteed to them by

Section 7 of the Act, except to the extent that such

rights may be affected by an egreement requiring

membership in a labor organization as a condition

of employment, as authorized in the proviso to

Section Bie )(3) of the Act.

WE WILL, upon request, recognize, meet, and

bargein collectively with the above-named Union as

the exclusive bargaining representative of all our

-i4- employees in the above-described unit with respect

to rates of pay, wages, hours of employment, and

other terms and conditions of employment, and, if

D--5762

an uncerstonding is reeched, embody such understanding

in a signed agreement.

WE WILL, upon request, cancel any changes of

berefits or working conditions of our employees

which we wade on Septeuber 4, 1970, or later, and

which may have resulted in financial or other detri-

ment to our employees and reimburse them for any

financial losses they may have suffered thereby.

WE WILL offer to those strikers to whom we have

not heretofore made an unconditional offer of rein-

statement, immediste and full reinstatement to their

former joos or, if those jobs no longer exist, to sub-

stantially equivalent positions, without prejudice to

their seniority or other righis and privileges, dis-

missing, if necessary, any replacement employees.

WE WILL make whole ell of our employees who went

on strike on September 22, 1970, for any loss of

earnings they may suffered from the time of their un-

conditional offer to return to work to the date that

we offered them reinstatement to their former or sub-

stantially equivalent employment.

SPITZER AKRON, INC.

(Employer)

Dated By

- (Representative ) (Title)

This is en officiel notice and must not be de-

faced by enyonc.

This notice must renin posted for 60 consecu-

tive days from the date of posting end must not be

altered, defaced, or covered by any other material.

chin

D--5782

Any questions concerning this notice or con-

piience with its provisions my be directed’ to the

mi oy one 1695 Federal Office Building, 12h0

as nth Street, Cleveland, Ohio 44199, Telephon

216--522-=3715. , J oy

-47-

TXD-410-71

Akron, Obio

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

DIVISION OF TRIAL EXAMINERS

WASHINGTON, D. C.

SPITZER AKRON, INC.

and Case No. 8-CA-6177

AUTO MECHANICS LOCAL 1363,

DISTRICT 54 of the INTERNATIONAL

ASSOCIATION OF MACHINISTS AND

AEROSPACE WORKERS, AFL-CIO

William E. Powers, Esq., for the

General Counsel.

Mr. Alfred Roemisch, EsQ-, end

Stanley M. Morgenstern, Esq.

of Cleveland, Ohio, for

Respondent.

Mr. Louis E. Schmidt, of Clevelend,

Ohio, for the Union.

TRIAL EXAMINER'S DECISION

Statement of the Case

EUGENE F. FREY, Trial Examiner: This case was

tried before me et Akron, Ohio, on May 17 end 18,

_ 1971, following pretriel procedures in complisnce with

the Nutional Labor Relations Act, es amended, 29 U.S.C.

Sec. 151, et seg. (herein called the Act), and in-

volves the issues (1) whether Respondent, Spitzer

Akron, Inc., is @ successor employer to East Town

Chrysler-Plymouth, Inc. (herein called East Town),

party to a collective-bergaining contract with the

above-named Union, 1/ and bound to recognise and

1/ The parent organization of the Union will be

referred to herein as IAM,

aide

TXD-410-71

bargain with said Union as statutory bargaining

agent of employees in an admitted appropriate unit,

and (2) whether Respondent refused to bargain with

said Union as such agent in various ways in violation

of Section 8(a)(5) and (1) of the Act, thereby

causing employees in said unit to engage in a strike

protected by the Act. 2/ All parties appeared and

participated in the trial by counsel or other rep-

resentative. At close of the testimony all parties

waived oral argument but I granted them an oppor-

tunity to file written briefs with me on or before

June 25, 1971. 3/ Briefs were received by me from

Respondent on July 1, 1971, and from General Counsel

on July 6, 1971, after an extension of time for

filing was granted by the Chief Trial Examiner. After

due consideration of the briefs and the record herein,

I issued this Decision on July 16, 1971, for release

to the parties in the usual course.

Upon the entire record in the case, including

my Observation of the witnesses on the stand and

consideration of arguments made during the trial

and in written briefs, I make the following:

Findings of Fact

l. ‘The Businesses of Respondent and

East Town, and Status of the Union

Respondent is an Ohio corporation with its prin-

cipal office and place of business in Akron, Ohio, ~

The issues arise on an amended complaint issued

March 12, 1971 by the Board's Regional Director

for Region 8, after Board investigation of a

charge filed by the Union on Jenuary 8, 1971.

3/ After close of the hearing the parties filed a

joint motion and stipulation on June 17, 1971,

for correction of the official transcript. The

record is hereby corrected and amended in accord-

ance with the joint motion and stipulation, which

document is marked in evidence in the record as

Joint Exhibit No. l.

-49-

'TxD-410-71

where it is in the business of retail and wholesale

selling and servicing of automobiles, parts and

accessories. In the year beginning September l,

1970, Respondent has a reasonable expectation of

gross income from such sales and service exceeding

$500,000 a year, and in the past year it has had

direct inflow of finished products valued in excess

of $50,000. Respondent admits, and I find, that it

is and hss been an employer engaged in commerce with-

in the meaning of Section 2(6) and (7) of the Act.

At all material times herein East Town has been

an Ohio corporation with its principal office and

place of business located in Akron, Ohio, where it

engaged up to August 22, 1970, in the same type of

business as Respondent. In the year prior to August

1970, East Town received gross income from said

business in excess of $500,000, and hed an annual

direct inflow of finished products in excess of

$50,000. I find that East Town has been at all

material times an employer engaged in commerce within

the meaning of Section 2(6) and (7) of the Act.

Tae Union is a labor organization within the

meaning of Section 2(5) of the Act.

II. The Alleged Unfair Labor Practices

A. Backrround Events

In 1964 members of Akron Automobile Dealers

Bargaining Group executed a collective-oargaining

contract with Local Lodge 762 of IAM, which expired

Deceriber 8, 1967. One signatory of the coatract

was Arnett, Inc., which in that period operated a

Chrysler-Plymouth auto sales and service agency at

457 East Market Street, Akron, Ohio, the same lo-

cation now occupied by Respondent. An amendment

to said contract executed by the same parties on the

latter date extended that document util August 31,

1970. Neither Respondent nor East Town were or are

members of the Group or were signatories to that

contract or its extension. On August 27, 1968,

-ju-

TXD-410-71

East Town executed a separate collective-bargaining

agreement with Local Lodge 762 covering employces

in the following unit which is hereby found approp-

riate for purposes of collective bargaining within

the meaning of Section 9(b) of the Act:

All auto mechanics, body repoirmen, painters,

their apprentices and helpers, and lubrication

men, employed by the Employer at its place of

business in Akron, Ohio, excluding all office

clerical employees, salesmen, parts depart-

ment employees, garage men, and all guards,

professional employdes and supervisors as

defined in the Act.

During the term of this contract and up to September

4, 1970, East Town occupied the same physical plant

as Respondent now occupies, 4/ and operated therein

the same type of auto sales and service agency as

Respondent now operates in it. On August 13, 1970,

East Town formally terminated said contract by

letter to the Union (which had become the successor

to Local Lodge 762 by merger in April 1970). On

the same date East Town sent a letter to Chrysler-

Plymouth Division of Chrysler Motor Corporetion

(herein called Chrysler) terminating its franchise

as an official Chrysler-Plymouth automobile dealer,

effective August 22.

In January 1968, Chrysler, through its Mer-

keting Investments Division, had created East Town

pursuant to a joint venture under agreement with

one John Wilson, under which Wilson owned a one-

fourth interest and Chrysler a three-fourth interest

in East Town. Wilson actively operated the corporation

7 The East Market Street facility included the new-

car sales and showroom with edjacent offices, a

used-car lot, service garage in rear of the building,

and e paint and body repair shop on the second

floor, reached by a ramp from the back street known

es North Adolph Street.

-5l-

TXD-410-71

as a franchised Chrysler-Plymouth dealer, but under

supervision of a board of directors consisting of

Wilson and two Chrysler officers, with the identity

of the latter officials changing from time to time.

East Town leased the premises sforesaid from anothcr

subsidiary of Chrysler. Wilson gave up the operation

about March 1970, resigning as president and director

of East Town. His place was taken by one Lemar

Horne, a Chrysler official in the Marketing Invest-

ment Division of Chrysler, but Wilson remained as

@ salaried general manager until about July. When

he left, another Chrysler official, John Logan,

took over as manager. About the time East Town

gave up its dealer franchise, Horne took over the

management of the operation for purposes of liqui-

dation and disposal of the assets. In the process,

he returned all factory parts in stock to Chrysler,

@s well as new cars on hand, and tried to sell the

remining assets. In this period, he continued to

have service and repair work already contracted for

completed.

In the Liquidation period prior to termination

of the union contract, Esst Town continued to abide

by its terms. On occasion, Horne and Service Manager

Ricaard Wolfe discussed employee grievances and

other personnel problews with Samuel Ramnytz, business

agent of the Union, and Union Steward Andy Parks,

and in course of such discussions the Union learned

thet Horne was acting as manager for Chrysler only

for purposes of clesing out the business, but there

was no discussion among them about the progress of

the liquidation, probable buyers, or the effect of

the liquidation on employees.

B. Tue Advent of Respondent

In April or hay 19/0, members of Spitzer Monage-

ment, Inc. (herein called Management), first looked

over the East Town plant and opervtion with a view

TxD-410-71

to taking over the business. 5/ They had some talks

with Wilson and Chrysler officials up to May, when

discussions lapsed for disagreement on velue of the

parts inventory, which prevented final agreement on

sale price. Discussions were resumed in July and

continued through August. However, Management and

Horne did not reach complete agreement on price

until about 5 p-m. on September 4, at which time

Respondent 6/ paid East Town about $290,000 for

inventery of automobiles, parts and work in process

on hand; it also agreed to assume and pay the East

Town payroll as of September 1, that date being

chosen to make the transaction easier from an

accounting standpoint.

During the final negotiations between August

3L and September 4, Alen Spitzer and Norman Hamilton,

an officer of Spitzer Management, Inc. were on the

premises daily, checking assets and working out

final details of the transfer. However, Respondent

did not assume legal control of the premises and

the operation until after midnight on September 5.

Respondent actually began operations in the plent

on the morning of September 7.

In the period ‘between August 22, the date when

East Town terminated its dealer franchise, and

5/ Management is an Ohio corporation composed of

members of the Spitzer family which engages in the

formation end financing of automobile deslerships

which obtain and operate under frenchises from

one of the Big Three (Chrysler, Ford and General

Motors).

6/ Respondent was incorporated by the Spitzer femily

on September 1, 1970, with Alen Spitzer, his

father John Spitzer, and his uncle Del Spitzer,

each owning one-third of the capital stock. Alan

Spitzer is its president. Respondent received

its license to do business as an automobile dealer

from the State of Ohio on or about August 31, 1970.

=39e

TXD-410-71.

midnight of September 4-5, members of Management

were conducting an inventory of all assets pre-

paratory to the purchase, but no cars were sold by

East Town, although a few were serviced by its

employees and delivered to customers under prior

sales, and in this period East Town employees were

still performing mechanical work in the repair shop.

At this time, Chrysler as owner of East Town and

landlord of the premises was operating per se under

its own dealer's license. After the sale of assets

by a Chrysler subsidiary, Chrysler Development

Corporation, to Respondent on September 4, another

Chrysler subsidiary, Chrysler Realty Corporation,

leased the premises to Respondent with first rent

payable October,1, 1970. After it began operations,

Respondent subléased the upstairs body and paint

shop, with some parking spaces and spray booths, to

one John Irec, an independent operator, who has since

run that operation under supervision of himself and

his wife, with four employees, none of whom are con-

nected with Respondent or do any work in its service

department or on agency premises. In arranging for

suto body repeir and paint work, Respoudent usually

secures bids from Irec, but does not subcontract

such work continually to him, nor docs Respondent

have any financiel or other interest in or control

over his business.

In operating the dealership, Respondent has

been conducting the same business (with the exception

of the auto body repair and paint shop) as East Town,

using 10 of the 11 men in the East Town work force.

It hes also hired and still employs three forwer East

Town management personuel: former service manager

Richard Wolfe has been continued in that position,

one Philip German hes been continued as ocssistant

service monager, and Gerald Guy has been continued

as sales rwnager. None of the three filed new job

applications before beginning work for Respondent.

a$h0

TXD-41.0-71

C. Dealings of the Spitzers and

Respondent with the Union

When Del Spitzer visited the agency early in

August 1970, in connection with family plans for

buying the business, he told mechanic John Hall

that the Spitzers planned to buy the agency, and

would need good mechanics. When Hall suggested

that he keep all the East Town mechanics, Spitzer

replied that he had checked on them, found they

were good men, and "I want every man to stay on

the job, and we will carry on as usual."

On the evening of September 4, 1970, shortly

after Respondent had consummated the purchase of

assets from East Town, John and Del Spitzer assembled

and talked to the employees at the agency. Del

Spitzer explained the family operations in developing

dealer franchises, and said the Spitzers had teken

over the Chrysler-Plymouth franchise here. fe.

announced that the employees would receive extra

pay in their paychecks coming out that day. He

also described the Spitzer hospital benefit plan,

saying it was better than the plan which the men

elready had from the Union; he said Respondent

would pay one-half of the hospital insurance premiums,

as well as one-half of their uniform expenses, and

would give them six paid holidays a year, and a

week of paid vacation after a year of service. At

close of his remarks, Spitzer asked for questions,

but there were none from the men, nor was there eny

discussion of the Union or its current benefits.

Steward Andy P-rks reported the Spitzer renarks at

once to Ramnytz, who ssid he would contact Respondent

about a contract.

Ramnytz visited the agency on September 9 end

told Alan Spitzer, Homilton and Wolfe that the Union

represented the employees and wanted a contract.

When Spitzer end Wolfe esked what that "involved,"

Remnytz said Respondent should sign “whatever came

-55-

TKD-4 10-71

out of the areca contract then being negotiated," 7/

and if it did so, its employees would continue to

work during the strike against the Akron dealers.

He explained that the Union was demanding from that

group $4.50, $4.75 and $5 an hour in successive

years of a 3-year contract. Wolfe commented that

he "did not see any sweat there” but also added

that Respondent was “not buying a blind pig in a

poke" or letting other people negotiate for it.

Spitzer said Respondent had just taken over the

business, was in process of taking parts inventory

and getting the parts department straightened out,

and things were in confusion, and asked the Union

to give Respondent 2 weeks, after which they would

"talk," In the discussion, Spitzer said that, after

his talk with the men on September 4, he doubted

very much that the East Town employees wanted to

“continue with the Union,” and suggested that the

Union should have a Board election, and if the

employees indicated they wanted the Union, he would

be glad to negotiate a contract with it. Ramnytz

replied "OK, if that is what you want.” He also

offered to show Spitzer new union authorization

cards which he had signed by the employees. The

Union never produced the cards.

Ramaytz reported this meeting to the employees,

who agreed to give Respondent the 2 weeks. On or

avout September 21, Rammytz come to the agency to

ask Alan Spitzer “what your position was." Spitzer

and Wolfe replied that Respondent would not recognize

the Unione RKamnytz reported this to the mechanics,

who voted to strike, and on September 22 at least

10 out of about 12 or 13 employees went on strike,

which vas still in process at time cf the heoring,

with the sanction of the Union.

Sometine in January 1971, Ramnytz hod a talk

7/ Te Union wss in process of negotiating a new

contract with the Akron Automobile Dealers Bar-

eaining Group, but had struck all the dealers on

September 1 for lack of agreement on s contract.

-36-

TXD-410-71

with Del Spitzer at the agency, in which he suggested

that Respondent recognize the Union, because it had

had a contract covering the employees there for

several years, and the employees still wanted the

Union to represent them. Spitzer replied that he

did not think the employees needed a union. Ramnytz

suggested that Respondent "should not fight it."

Spitzer replied “We are not fighters, we are lovers."

Ramnytz said "Let's be lovers and make a contract.”

Spitzer then referred to extensive damage to show-

room windows during the strike and repeated he did

not think the employees needed a union. 8/

On March 26, 1971, 10 striking employees for-

mally offered by letter to return unconditionally

to work for Respondent. Respondent sent each a

letter requesting them to return, but none did.

Ramnytz took eight of them to the agency one night

for purposes of arranging their return, but Alan

Spitzer suggested he would interview them the next

day when the service manager was present. When they

came back the next morning, Spitzer asked each to

sign new employment applications. Ramnytz asked why

this was necessary. Spitzer gave an equivocal answer

indicating this was necessary, that as they were new

employees, he “could not hire them.” Later, the

Union learned from counsel for Respondent that the

new applications were asked for merely to show that

the men were available for work. In the interview,

some men made arrangements with Spitzer on a date

for return to work, but they remained on strike.

One of them, Andy Parks, later agreed to return on

April 19 after a personal talk with Alen Spitzer,

57 Sometime late in 1970, Respondent filed suit in the

Summit County, Ohio Court of Common Pleas, egainst

the Union, its officers and some employees, seeking

an injunction against coercion of employees and

physical violence. On December 29, 1970, the Court

issued e temporery restreining order against the

defendants, limiting the number of pickets et the

agency premises, restraining them from interfering

by forcible means or threat of force (Continued)

-57-

T™D-410-71

but remained on strike after recciving an anonymous

telephone call saying he would be "taken care of” if

he returned; he later agreed to return on May 17,

but then broke his leg, and has been unable to go

back up to time of the trial.

D. Contentions of the Parties and Final

Findings and Conclusions Thereon

le The successorship issue

The record shows, and Respondent admits, that

it has continued the same business of East Town at

the same location with substantially the same work

force and supervisor personnel, and the remarks of

Del Spitzer to one mechanic in August make it clear

that the Spitzer interests had this continuity in

mind before Respondent was created and began oper-

ations, and even before the East Town contract with

the Union expired. In addition, Respondent has

leased the agency premises from the same Chrysler

division as East Town, and has continued all aspects

of the operation, with the exception of the paint

shop cperation, which is subleased to an independent

operator. Hence, it is clear that the employing

industry has been continued by Respondent in essen-

tially the same form and scope as it was before the

transfer of ownership, so thet it would sppear prima

facie that Respondent legally succeeds to eny bar-

gaining obligation of its predecessor created by the

Act. Bachrodt Chevrolet Co., 1&6 NLRB No. 151;

N.L.eR«Be ve Colten, 105 F. 2d 179, 183 (C.A. 6);

Interstate 65 Corporation, 186 NLRB No. 41; The

William J. Burns International Detective A ency » inc.,

162 NLRB No. 50; Hackney Iron & Steel Co., l NLRB

NOe 53-6

S/ (Continued) with ingress to and egress from the

premisos, and from causing physical damage to

the real or personal property of Respondent,

its employees or customers. The injunction was

still in effect at time of the trial herein.

-53-

TKD-410-71

Respondent argues that these principles and the

supporting authorities do not control here because

this is not the usual type of successorship as con-

sidered in those cases, in that (1) Respondent did

not buy the assets and business from East Town which

had dealt with the Union, but from a division of

Chrysler after it took over the assets and operations

on default of East Town, and (2) before Respondent

was created and took over the business, the contract

with the Union had expired, and no negotiations for

a new contract were pending with East Town. The

record shows that Chrysler stepped in and kept the

operation going partially, to protect its own invest-

ment after Wilson gave it up, but it is also clear

that during the reduced operation it maintained the

same labor force and adhered to the union contract

until its expiration date, so I must conclude that the

continuity of the employing enterprise was not sub-

stantially disturbed or its nature changed during its

interim operation by Chrysler, which was obviously

trying to operate it as a viable and thus saleable

business, until such time as the Spitzer interests

or some other entrepreneur took it over. Hence,

Respondent took over a going business, not a defunct

or liquidated one. It follows that its bargaining

obligation as a successor employer under the above

cases continued.

The fact that the Union's contract had expired,

and no negotiations were pending, when Respondent

took over the business, did not relieve Respondent

of its obligation. The Bosrd and courts have held

that the bargaining obligation of an employer under

a prior collective-bargaining agreement continues

even after that agreement has expired end during

the period between such agreements, 9/ and that

where the transfer of assets from one employer to

G7 Industrial Union of Marine & Shipbuilding Workers

SoCo} ont

Ve N.L.R.B., 300 Fe 24 615, , ce

denied 375 U.S. -_ The Williem J. Burns Inter-

national Detective Agenc ency, >) IMCe, supra.

- =

TXD-410-71

enother leaves intact the identity of the employing

enterprise, the duty of the former to recognize and

bargain with an incumbent union, even in the period

between contracts, devolves on the latter as the

successor employer. Overnite Transportation Co.

157 NLRB 1185, enforced 375 F. 2d ‘765, (C.A. Ly,

cert. denied 398 U.S. 838; The William J. Burns

International Detective Agency, Inc., supra.

The same authorities hold that the obligation

of the successor employer to bargain with the incum-

bent union includes the negative injunction to refrein

from unilateral changes of wages and other benefits

established by the expired contract. Hence, I must

hold that Respondent's admitted unilateral increase

of wages and other benefits of unit employees the

same day that it consummated the purchase of the busi-

ness was a vidlation of its collective-bargaining duty

under Section 8(a)(5) of the Act.

Respondent tries to distinguish the William J.

Burns case because on review of the Board's decision

therein (182 NLRB No. 50), the U. S. Court of Appeals,

Second Circuit, on April 26, 1971 (77 LRRM 2081) re-

fused to enforce the Board's bargaining order against

the successor employer insofar as it ordered that

employer to honor a collective-bargaining contract

negotiated by the predecessor employer with e union

only shortly before the transfer of ownership, on the

theory that such order compelled the successor to

accept a contract not negotiated by it, in violation

of Section 8(d) of the Act. However, the Court still

agreed with the basic principle reiterated by the

Board and the courts as found above, that requires

the employer succeeding to control of a continuing

business enterprise to recognize and bargain with the

union representing the unit employees therein (77 LRRM

at pe 2083). Hence, the Circuit Court did not limit,

but rather recognized the basic principle.

2. The refusal to bargain

I have already found on the basis of the auth-

oriLies ‘te? that Respondent technically violated

abi)

«TXD-410~71

Secticn &(a)(5) of the Act on September 4 by its

unilateral changes of existing wages and working con-

ditions of unit employees, and this alone would

suffice to support an order to bargain in the usual

form. However, the pleadings raise the issue whether

Respondent has continued in any other respect to

recognize or bargain with the Union, and both sides

have argued the point whether Respondent after Sep-

tember 4 had a bona fide doubt of the Union's majority

status. At the outset, it is significant that after

union agent Ramnytz on September 9 first requested

Respondent to make a contract, 10/ his only suggestion

about bargaining procedure was t Respondent accept

10/ In his testimony Ramnytz tried to advance the date

of the Union's demand to an unidentified date in

August, at which time he says he told Alan Spitzer

and Wolfe that the Union had a contract and wanted

to renew it because of the Group contract which was

in negotiation at the time. I do not credit this

story for various reasons: (1) while Ramnytz re-

calls the talk of September 9 with Spitzer, he can-

not recall the earlier date, which would be essen-

tial to support General Counsel's claim that Re-

spondent (though not yet in existence) had been

operating the agency since August 19 as a successor

employer (2) the alleged request for renewal of

the current contract was not a proper request for

bargaining because it was apparently tied to the

pending negotiations with the Akron Dealers’ Group

as appears in his remrks on September 9), end

3) the facts clearly showing the Spitzer interests

did not close the deal with East Town and take over

the business until late on September 4 gives the

lie to Ramnytz' statement that the Spitzers indi-

cated as early as August 19 that they were "slready

carrying on the business.” Hence, I find no

credible proof that the Union made any demand for

bargaining, much less a proper one, on August 19

or earlier.

-6l-

TXD=4.10-71

whatever contract terms cawe out of the pending

negotiations with the Akron Dealers bargaining Group.

While Respondent did not at first glance see any

great problem sbout the Union's wage demands to the

Group, it did refuse to accept Blindly any overv1l

Group contract without negotiating contract terms for

itself, and then asked for a short period to get its

business straightened out before entering on serious

negotiations. The Union agreed to this, and was also

receptive to Respondent's offer that it would negotiate

a contract if and when the employees chose the Union

in a Board-conducted election. I see no conduct of

Respondent in this discussion which would justify a

bargaining order, because the Union was trying to

force Respondent to accept an outside contract as

and if worked out by others, without negotiation,

in order to avoid a strike of its employees. On

this point, Respondent relies on the statement of

the Second Circuit Court of Appeals in the William

J. Burns case that "Neither the applicable case law

nor the national labor policy justifies the Board in

imposing a collective agreement upon an unwilling

party who kad no part in the negotiation of the

agreement" (77 LRRM at page 2083). I agree with

this view, and hold that Respondent did not on

Septenber 9 engage in any violation of the Act,

particularly since it did net at that time express

any doubt about the Union's majority status and was

willing to negotiate a contract with it after an

election or a short moratorium while it got its new

business operating. 11/

11/ I do not accept Respondent's argument that the

Union never made a clesr and unequivocal demand for

bargaining on September 9, for although Spitzer and

Ramnytz gave diffcrent versions of what Ramnytz said

on this subject, the gist of the whole conversation

as found above from testimony of both makes it clear

that Ramnytz was then seeking recognition of the

Union and consummation of a contract, and Respondent's

reply, acking “what was involved," which elicited

Ramnytz' stateuwcnt of wage demands and request for

Signature of the Group contract when ccusuumated,

leeves no doubt that it viewed the first (Continued)

=62e

TXD-410-71

However, when Ramnytz on September 21 came back

to request bargeining in effect, Respondent for the

first time flatly refused to recognize the Union,

which precipitated the strike the next day.. Respon-

dent gave no reason for its refusal, other than to

state the employees did not need a union, and to

refer to instances of strike violence end damage to

its property. Respondent tries to justify this re-

fusal on the ground of a good-faith doubt of majority

status, which it claims arose from (1) the failure

of the unit employees to raise any questions on

September 4 about the new wages ond working conditions

announced unilaterally that evening, (2) the Union's

certification as bargaining agent was "several years

old," so that the l-year presumption of majority

status after such certification does not apply; and

(3) the Union's latest contract had just expired. In

my view, none of these factors support the claim of

bona fide doubt.

First, mere silence of unit employees about the

Union or their adherence to it when hearing wage

raises and other increased benefits announced for

the first time is an equivocal circumstance which

falls far short of any reasonable indication that

the employees no longer desired union representation;

even if that inference could be justified on any

theory, any disaffection of the employees at that

point could well be attributed to the coercive effects

11/ (Continued) remarks as a request for negotiations.

A request for bargaining need not follow any

specific or precise wording or formula, but will

be sufficient so long as there is a clear commun-

ication of meaning, and the employer understands

that a bergaining demand is being made. N.L.R.B.

v. Barney's Supercenter, Inc., 296 F. 2d 93

(C.A. 3); Beverages, Ince, 102 NLRB No. 136.

-63-

TXD-410-71

of a sudden, unilateral grant of increased wages and

benefits which violated bota Section 8(a)(5) and (1)

of the Act. 12/ Having used such coercion, the em-

ployer should not be permitted to profit by his own

unfair labor practices which might tend to undermine

the Union's past mJjority status. 13/

Second, the record shows that Locol 762 was cer-

tified by the Board in 1961 as bargaining agent for

unit employees working then for Arnett, Inc. After

East Town succeeded Arnett in running the business,

and the Union in 1970 took over the duties of Local

762 by merger, including the 1964 contract, it is

clear that the Union continued to represent unit

employees as statutory bargaining representative at

least up to August 31, 1970, without objection from

Arnett, East Town or even the Spitzer family when

they began to work out a purchase of the business. 1h/

Hence, all the circumstances support an inference of

continuance of the Union's majority status, and Re-

spondent offers no congent proof of unusual circun-

stances to rebut any presumption of continuance of

12/ See cases cited in footnote 9 above.

13/ Harold W..Hinson, d/b/a Hen House Market No. 3,

175 NLRB No. 100.

14/ The normal presumption of majority status of a

union continues ‘during the operation of a con-

tract having a union shop and checkoff clause

which requires all unit employees to be members

of the union.

Having thus chosen 4 bargaining agent,

there is no reason to believe that the employees

would change their attitudes merely because the

identity of their employer had changed. N.L.R.B.

v. Albert Armato, 199 F. 2d 800, 803 (C.A. 7)-

abhe

TXD-410-71

that status in Local 762 and later the Union, after

May 12, 1962. 15/

Finally, even if a claim of good-faith doubt as

late as September 21 were supported by record facts

or some theory other than urged above, it would be

substantially weakened by two sets of circumstances:

(1) Uncontradicted testimony of steward Parks

shows that about September 13 or 14 Sales Manager

Guy announced to Parks that he was going to discharge

two unit employees because they could not do their

work. He asked Parks for his comment, and Parks

replied he had a right to discharge anyone he wanted

to at any time, but that Parks would have to report

it to the business agent of the Union and "you can

take it from there." Neither employee was discharged.

While Guy as sales manager would appear to have auth-

ority only over salesmen, who are excluded from the

appropriate unit, he did not testify, hence I must

157 It is well settled that, absent unusual circum-

stances, there is an irrebuttable presumption

that the majority status of a certified union

continues for 1 year after the date of its cer-

tification. After the first year the certificate

still continues that presumption, but it is nor-

mally rebuttable by an effirmative showing that

the union no longer commands a mjority. More-

over, where the certificate is a year or more

old an employer may withhold further bargaining

without violating the Act, and insist that the

union reestablish its statutory representative

status if, but only if, he in good faith has a

reasonable doubt of the union's continuing

majority status, The employer must, however,

adduce cogent proof of objective facts to fur-

nish a reasonable basis for such doubt, and

cannot rely on a mere assertion of it or proof

only of his subjective frame of mind. Laystrom

Manufacturing Co., 151 NLRB 1462, 1484, enforce-

nent denied onthe facts, 359 Fe 24 799 (CoA. 7)3

Coca-Cola Bottling Works, Inc., 186 NLRB No. lie.

-65-

TKD-4 10-71

infer that his remarks to Parks indicated to the

latter that he had some discharge suthority over

unit employees, and that he was sdvising Parks as

union steward beforehand about discipline conten-

plated agcinst unit employees. [I also find from

uncontradicted testimony of Parks that: About a

week be‘ore the strike started Service Manager

. wolfe ca.iled all mechanics and body repair men

together and asked them “what are you trying to

do, sabotage me?", complaining that shop employees

were taking off from work without reporting in as

absent, which msde it hard for him to get work out

on schedule ss promised to customers. He commented

that if that was the way the Union conducted oper-

ations, he wanted no part of it, and was glad he

had never worked in a union shop before. The men

told him that if they did not get a contract they

would “hit the bricks.” He replied thet if a strike

occurred, "I could care less." 16/ I find from

these facts that Respondent after September 9 con-

tinued to recognize the Union es bargaining agent

of unit enployees, and had reason to believe most

of them would continue to adhere to it by striking

if Respondent did not reach an agreement with it.

(2) 411 but one or two of the unit employees

began a strike on September 22nd sanctioned by

the Union, and such concerted action after Respond-

ent flatly denied recognition to the Union wes

clear notice to Respondent that a majority of unit

lo/ I nuke no finding thet Wolfe's remarks to the

group indicated significant antiunion snimus

on the part of Respondent, becuuse the occasion

and tenor of his remarks clearly show he was

irritated, if not actually angered, by unusuel

abseuteeism among the unit employees; Parks

admitted Wolfe had a legitimate compleint

about employees going absent without leave or

notice.

-66<-

“ XD-410-71

employees still adhered to the Union. 17/ It fol-

lows, and I find, that Respondent did not have a

good faith doubt of the Union's majority status on

September 14, 1970, and further refused in good

faith on and after that date tc bargsin with the

Union in violation of Section 8(a)(5) and (1) of

the Act. 18/

Since the unit employees struck on September

21 because of Respondent's illegal refusal to bar-

gain with the Union, I must also find that the

strike of that date was an unfair labor practice

strike. Respondent argues that the strike should

not be considered "protected" under the Act because

of the incidence of extensive physical damage to

its property during the course of the strike. The

record shows that s local State court issued a pre-

liminary injunction against strike violence sgainst

the Union, its agents and some strikers, but the

evidence which supported that decision, and which

might service to bring the violence and property

damage home to the Union and its members on strike,

was not offered by Respondent, and the union agent

and ite members who testified in this case denied

any agency for or connection with the violence and

damage. However, Ramnytz admitted the existence of -.

the property damage and at least one altercation

between a striker and a company supervisor. Respond-

ent argues from this that the Board may infer that

the "Union or its members had something to do with

17/ N.L.R.B. v. Harris-Woodson Co., Inc., 179 F. 2d

720, 723 (C.A. 4); N.L.R.B. v. I. Taitel and Son,

261 F. 24 1, 4 (C.A. 7); Canton Sign Co., 17%

NLRB No. 133; Pacific Abrasive Su Co., 162

NLRB No. 48.

18/ The above circumstances, in my view, far out-

weigh the significance of the facts that Remnytz

on the 9th had been in apparent agreement with

the idea of a new election, and had offered to

show new authorization cards which he had pro-

cured from them some days earlier, but never

did produce them.

-67-

TXD-410-71

the damage, os it all occurred during the duration

of the strike.” However, since General Counsel is

claiming on the basis of well-settled law 19/ that

the unfair labor practice strikers sre entitled to

backpay from the time of their unconditional offer

to return to work until a proper offer of reinstate-

ment, it requires cogent proof in this proceeding

of their connection with or liability for the damage

done, to deny them that substantial right of back-

pay. I find the record devoid of such proof. 20/

III. The Effect of the Unfair Labor

Practices upon Commerce

The activities of Respondent set forth in

section II, above, have a close, intimste and sub-

stantial relation to trade, traffic and commerce

among the several States, and tend to lead to labor

disputes burdening and obstructing commerce and the

free flow of commerce.

Conclusion of Law

1. Respondent and East Town are employers

engaged in commerce, and the Union is a labor

organization, within the meaning of the Act.

2. All auto mechanics, body repairmen, paint-

ers, their apprentices and helpers, and lubrication

wen, employed by Respondent at its place of business

in Akron, Ohio, excluding all office clerical em-

ployees, salesmen, parts department employees,

garage men, and sll guards, professional employees

and supervisors as defined in the Act, constitute

g unit appropriate for purposes of collective bar-

gaining within the meaning of Section 9(b) of the

Act. a

19/ Phelps-Dodge Corp. v- N.L.R-B., 313 U.S. 177.

20/ Artcraft Mautle & Fireplace Co., 174 NLRB No.

110 (pages 9, etc. of Decision of Trial Examiner,

adopted by the Bourd).

-68-

TXD-410-71

3- At all material times mentioned in this

Decision the Union bas beea the exclusive represen-

tative of all employees in the above unit for pur-

poses of collective bargaining within the meaning

of Section 9(a) of the Act.

4, By unilateral changes of wages and working

conditions of employees in said unit on September 4,

1970, and by thereafter failing and refusing, on

request, to recognize, meet and bargain with seid

Union as such bargaining agent with respect to rates

of pay, wages, hours of employment, and other terms

aud conditions of employment of employees in said

unit, Respondent has engaged in, and is engaging

in, unfair labor practices affecting commerce with-

in the meaning of Sections 8(a)(5) and (1) and 2(6)

and (7) of the Act.

5 The strike of Respondent's employees on

September 22, 1970, was caused by the unfair labor

practices of Respondent found above, and is an

unfair labor practice strike within the meaning

of the Act.

The Remedy

Having found that Respondent has failed and

refused to recognize and bergain with the Union as

the statutory bargaining agent of its employees in

violation of Section 8(a)(5) and (1) of the Act,

I shall recommend the usual type of cease and de-

sist and bargaining order, including certain affir-

mative action designed to effectuate the policies

of the Act. While Respondent's unilateral change

of wages and working conditions on September 4

included a change in the employees’ share of the

cost of health insurance, it is not clear from the

record that the increased cost covered the same

benefits as under the Union's heelth insurance

plen, or included added life insurence or other

coverage. I will therefore recommend only that

Respondent be ordered to cancel any changes of

benefits or working cenditions which may have

-69-

TXD-410-71

resulted in financial or other detriment to emu-

ployees, and to reimburse any who may have suffered

financial loss thereby.

As Respondent's employees have been engaging

in 6n unfair lebor prectice strike, they are entitled

to reinstatement upon their unconditional application

for reinstatement, and to backpay from the date of

such application to the date of an unconditional

offer of reinstatement. 21/ Here, 10 strikers made

8 proper request for reinstatement on March 26, 1971,

and on a later date not specified Respondent sent

them letters requesting them to return to work, but

none of them did; 8 came in at one time with Ramnytz

to arrange a return date, but 311 remained on strike.

Hence, the strikers need not be offered reinstate-

ment, but they ere entitled to backpay only from the

date of Respondent's receipt of their offer of March

26, 1971, to the dates they received the letters

offering reinstatement. 22/ While those dates are

not clear in the record, they can be ascertained

from corpany, employee or union records. Backpay

shall be conputed in accordance with the formulae

set forth in F. Ww. Woolworth Company, 90 NLRB 289,

and Isis Plumbing & Heating Co., 135 NLRB 716. Since

tnere is a lack of cogent proof indicating that the

Union or specific strikers engaged in or are cleg?ly

liable for misconduct and property damage occurring

during the strike which would bar strikers from back-

pay, I cannot make any reconmendation to bar any or

all strikers from that relief.

Upon the basis of the foregoing findings of

fact, conclusions of law, and the entire record,

and pursuant to Section 10(c) of the Act, I hereby

21/ Sew Magic, Inc., 184 NLRB No. 115; Mostro Plastics

Corp. Ve N.L.R.B., 350 U.S. 270, 275; Cast Optics

Corporation, LO NLRB No. l. ‘ 2

22/ Southwestern Pipe, Inc., 179 NLRB No. 52;

O'Deniel Oldsmobile, Iuc., 179 NLRB No. 55;

Beader Ship Repair Co., et els., 188 NLRB No. 06.

-—j'i\e

@

TXD-410-71

issue the following recommended: 23/ .

‘ ORDER

Respondent, Spitzer Akron, Inc., its officers,

agents, successors and assigns, shall:

le Cease and desist from:

(a) Making unilateral changes in wages,

rates of pay, hours of employment, or other terms

and conditions of employment of its employees in

the appropriate unit described below, or failing

or refusing in any other manner to recognize, meet

or bargain collectively with the above Union, upon

request, as the exclusive bargaining representative

of its employees in said unit, which is described

as follows:

All auto mechanics, body repairmen, painters,

their apprentices and helpers, and lubrication

men, employed by Respondent at its place of

business in Akron, Ohio, excluding all office

clerical employees, salesmen, parts depart-

ment employees, garage men, and all guards,

professionel employees and supervisors as

defined in the Act.

(>) In any like or related manner inter-

fering with, restraining, or coercing its employees

in the exercise of any of the rights guaranteed to

them by Section 7 of the Act, except to the extent

that such rights may be effected by an agreement

requiring membership in a labor organization as a

23/ In the event no exceptions are filed as pro-

vided by Section 102.46 of the Rules and Reg-

ulations of the National Labor Relations Board,

the findings, corclusions, recommendations, and

recoumended Order herein shall, es provided in

Section 102.48 of the Rules and Regulations,

be adopted by the Board and become its findings,

conclusions, and order, snd all objections there-

to shall be deemed waived for all purposes.

afi

TXD-410-71

condition of employment, as authorized in the

proviso to Section 8(a)(3) of tne Act.

2. Take the following affirmative action which

is necessary to effectuate the policies of the Act:

(a) Upon request, recognize, meet and bar-

gain collectively with the sbove-named Union au the

exclusive bargaining representetive of.all its em-

ployees in the appropriate unit found 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 under-

standing in a signed agreement.

(>) Upon request, cancel any chenges of

benefits or working conditions of its employees in

said unit made on September 4, 1970, or later, which

may have resulted in financial or other detriment

to said employees, and reimburse them for auy finan-

cial losses they may have suffered thereby.

j

(c) Make whole all of its ewployees who

went on strike on September’ 22, 1970, for any loss

of earnings they may have suffered from the time of

their unconditional offer to return to work to the

date when Respondent offered them reinstatement to

their former or substantially equivalent employment.

(d) Preserve end, upon request, mike

available to the Board or its agents, for examination

and copying, all payroll records, social security

payment records, timecards, personnel records and

reports, and all other records relevant or necessary

to facilitate a determination of the amounts due

to employees under the terms of this Order.

(e) Post at its place of business in Akron,

Ohio, copies of the notice attached hereto as “Appen-

dix." 24/ Copies of said notice, on forms to be

24/ In the event that the Board's Order is enforced

by a judgment of a United States Court of Appeals,

the words in the notice reading (Continued)

oF2e

TXD-410-71

provided by the Regional Director for Region 8,

after being duly signed by Respondent's represen-

tative, shall te posted by it immediately on re-

ceipt thereof and be maintained by it for 60 con-

secutive days thereafter, in conspicuous places,

including all places where notices to employees

are customarily posted. Reasonable steps shall

be taken to insure that said notices are not al-

tered, defaced, or covered by any other material.

(f) Notify said Regional Director, in

writing, within 20 days from date of receipt of

this Decision, what steps Respondent has taken

to comply herewith. 25/

Dated at Washington, D. C.

[s{ Bugene F. Frey

Eugene F. Frey

Trial Examiner

eal] (Continued) "POSTED BY ORDER OF THE NATIONAL

LABOR RELATIONS BOARD” shall be changed to

read “POSTED PURSUANT TO A JUDGMENT OF THE

UNITED STATES COURT OF APPEALS ENFORCING AN

ORDER OF THE NATIONAL LABOR RELATIONS BOARD."

25/ In the event that this recommended Order is

adopted by the Board efter exceptions have

been filed, notify the Regional Director for

Region 8, in writing, within 20 days from the

date of this Order, what steps Respondent has

taken to comply herewith.

» ks

APPENDIX TXD-4.10-71

NOTICE TO EMPLOYEES

POSTED BY ORDER OF ‘IH

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

WE WILL NOT make unilateral changes in wages, rates

of pay, hours of employment, or other terms and con-

ditions of employment of our employees in the approp-

riate unit described below, or fail or refuse in

auy other manner to recognize, meet or bargain

collectively with AUTO MECHANICS LOCAL 1363, DISTRICT

54. OF INTERNATIONAL ASSOCIATION OF MACHINISTS AND

AMROGPACE WORKERS, AFL-CEO, as the exclusive bar-

gaining representative of our employees in said unit,

which is described as follows:

All auto mechanics, body repairmen, painters,

their apprentices and helpers, and Lubrication

men, employed in our place of business in Akron,

Ohio, excluding all office clerical employees,

salesmen, parts department employees, garage

men, and all guards, professional employees

and supervisors as defined in the Act.

WE WILL NOT in any like or related manner interfere

with, restrain or coerce our employees in the exer-

cise of any of the rights guaranteed to them by

Section 7 of the Act, except to the extent that such

rights may be affected by an agreement requiring

membership in a labor organization as a condition

of employment, as authorized in the proviso to

Section 8(a)(3) of the Act.

WE WILL, upon request, recognize, meet ond bargain

collectively with the above-named Union as the

exclusive bargaining representative of all our

employees in the above-described unit 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 under-

standins in a signed ygreement.

elhe

TXD-410-71

WE WILL, upon request, cancel any changes of bene-

fits or working conditions of our cuployees which

we made on September 4, 1970, or later, and which

may have resulted in financiel or other detriment —

to our employees, and reimburse them for any fi-

nancial losses they may have suffered thereby.

WE WILL make whole all of our employees who went

on strike on Septeniber 22, 1970, for any loss of

earnings they may have suffered from the time of

their unconditional offer to return to work to

the date of our offers of reinstatement to their

former or substantially equivalent employment.

SPITZER AKRON, INC.

(Employer )

Dated By

(Representative ) (Title)

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE

DEFACED BY ANYONE

This Notice must remain posted for 60 con-

secutive days from the date of posting and must not

be altered, defaced, or covered by any other material.

Any questions concerning this Notice or com-

pliance with its provisions, may be directed to the

Board's Office, 1695 Federal Office Building, 1240

E. 9th Street, Cleveland, Ohio +4199 (Tel. No~ 216-

522-3715)

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