Dodge of Naperville, Inc. and Burke Automotive Group, Inc., d/b/a Naperville Jeep/Dodge, a Single Em

National Labor Relations Board - Board Decisions

Jan 3, 2012

357 N.L.R.B. 2252 (N.L.R.B. 2012)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
357 NLRB No. 183
2252
Dodge of Naperville, Inc. and Burke Automotive
Group, Inc. d/b/a Naperville Jeep/Dodge, a Sin-
gle Employer and Automobile Mechanics Local
No. 701, International Association of Machinists
and Aerospace Workers, AFL–CIO. Case 13–
CA–045399
January 3, 2012
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS BECKER
AND HAYES
On August 2, 2010, Administrative Law Judge Paul
Bogas issued the attached decision. The Respondent
filed exceptions and a supporting brief and the Acting
General Counsel filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions as modified and to adopt the rec-
ommended Order as modified.2
Background
Since 1989, the Union represented a unit of mechanics
at a Naperville, Illinois Chrysler dealership, which the
Respondent purchased in 2003. The Respondent recog-
nized the Union and entered into collective-bargaining
agreements with it, the most recent of which expired by
its terms on July 31, 2009.3 The Respondent also owned
and operated a larger Chrysler dealership in nearby Lisle,
Illinois, where, at all pertinent times, it employed ap-
proximately 14 mechanics who were not represented by a
union.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Drywall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We modify the judge’s remedy to conform to the Board’s standard
remedial language. Specifically, in ordering that employees be made
whole for losses to wages and benefits under Ogle Protection Service,
183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), the judge
inadvertently failed to order that employees be made whole with inter-
est as computed in New Horizons for the Retarded, 283 NLRB 1173
(1987). Further, in accordance with our decision in Kentucky River
Medical Center, 356 NLRB 6 (2010), enf. denied on other grounds sub
nom. Jackson Hospital Corp. v. NLRB, 647 F.3d 1137 (D.C. Cir. 2011),
we modify the remedy by requiring that backpay and other monetary
awards shall be paid with interest compounded on a daily basis.
We modify the judge’s recommended Order to conform to his unfair
labor practice findings, and to provide for the posting of the notice in
accord with J. Picini Flooring, 356 NLRB 11 (2010). For the reasons
stated in his dissenting opinion in J. Picini Flooring, Member Hayes
would not require electronic distribution of the notice.
3 Dates are in 2009, unless otherwise noted.
On May 13, as part of the Chrysler Motors bankruptcy
proceedings, Chrysler informed the Respondent that it
would cancel its Dodge and Jeep franchises at Lisle. On
June 19, as a result of the Respondent’s efforts to keep its
franchises, Chrysler permitted the Respondent to retain
its Lisle operation, where it was licensed to sell more
lines of vehicles, and give up the Naperville franchise
instead. Chrysler conditioned the retention of the Lisle
franchises on the Respondent’s remodeling the Naper-
ville facility and moving the entire merged operation
from Lisle back to Naperville approximately 17 months
after the closing.4
On June 20, the Respondent told the Naperville me-
chanics that the facility was closed and that they could
apply for work at its Lisle dealership. The Respondent
informed employees that the Lisle facility would be a
nonunion shop and that there would be no union benefits.
The Naperville mechanics started work at Lisle during
the June 22–26 workweek, before the Respondent for-
mally offered to hire them. They worked side-by-side
with the Lisle mechanics servicing vehicles. The Lisle
service manager supervised the combined group. On
Friday, June 26, the Respondent formally offered the six
Naperville mechanics work at Lisle and told them that
the Lisle facility “was a nonunion store” and would
“never be a union store,” and that if the mechanics “ever
went out on strike it would mean that [they] quit and
would not be able to collect unemployment.” The Re-
spondent also stated that if the employees chose to quit
instead of accepting employment under the terms being
offered, it would not pay them unemployment compensa-
tion.
That same day, the Respondent withdrew recognition
from the Union on the ground that the Union had lost its
majority status due to the merger. As a result of the Re-
spondent’s subsequent unilateral changes to their terms
and conditions of employment, the former Naperville
mechanics experienced significant loss of wages and
benefits, as the judge described in his decision, including
discontinuance of their health insurance and pension
coverage.
Discussion
We adopt the judge’s conclusion that the Respondent
unlawfully withdrew recognition from the Union, but we
do not rely entirely on his rationale.5 In finding that the

4 The status of that remodeling is not in the record.
5 We also agree with the judge that Respondents Dodge of Naper-
ville, Inc. and Burke Automotive Group, Inc. d/b/a Naperville
Jeep/Dodge constitute a single employer for purposes of the Act and
are jointly and severally liable for the violations of the Act found in this
decision. In so finding, we do not rely on the judge’s finding that the
Naperville and Lisle locations shared a parts manager.
NAPERVILLE JEEP/DODGE 2253
Respondent unlawfully withdrew recognition, the judge
relies primarily on the parties’ bargaining history. Alt-
hough we agree with the judge that bargaining history is
an important factor, we also agree with our dissenting
colleague that bargaining history alone is not sufficient to
find that the unit here continued to be an appropriate unit
for bargaining. Nevertheless, we find that under the cir-
cumstances the Respondent violated Section 8(a)(5) and
(1) by withdrawing recognition.
The issue here is whether the existing unit remains ap-
propriate in light of changed circumstances. The Board
considers the traditional community-of-interest factors in
determining whether the unit remains an appropriate unit
for bargaining. See, e.g., Safeway Stores, 256 NLRB
918 (1981). The Board, however, gives significant
weight to the parties’ history of bargaining. Specifically,
our case law holds that “‘compelling circumstances’ are
required to overcome the significance of bargaining his-
tory.” ADT Security Services, 355 NLRB 1388, 1388
(2010), quoting Radio Station KOMO-AM, 324 NLRB
256, 262–263 (1997) (citing Armco, Inc. v. NLRB, 832
F.2d 357, 363 (6th Cir. 1987), and other cases). We find
that the Respondent has not met its burden to establish
that compelling circumstances are present here.

We further adopt the judge’s findings that: (1) the Respondent vio-
lated Sec. 8(a)(1) of the Act by threatening bargaining unit employees
in June 2009 that they would no longer receive union benefits, that their
continued employment would be in a nonunion shop, that the shop
would never be unionized, and that if the unit employees engaged in a
strike their employment would be terminated and they would not be
able to receive unemployment compensation; (2) the Respondent vio-
lated Sec. 8(a)(3) and (1) of the Act by constructively discharging unit
employees Robert Adams and Mike Marjanovich, who could not afford
to work under the unilaterally imposed conditions; and (3) the Re-
spondent violated Sec. 8(a)(5) and (1) of the Act by withdrawing
recognition from the Union as explained further herein, by repudiating
the collective-bargaining agreement with the Union and unilaterally
changing the terms and conditions of employment of bargaining unit
employees, by failing to bargain with the Union concerning the effects
of its relocation of the bargaining unit, and by unreasonably delaying
the provision of information sought by the Union’s July 9 information
request.
As to the information request, we do not adopt the judge’s finding
that the Respondent delayed providing the information until March
2010. Rather, we find that the Respondent provided the requested
information in September when it furnished the information to the
Board agent investigating this case and provided a copy to the Union.
Nevertheless, we find that the 2-month delay was unreasonable and we
adopt the judge’s finding that the Respondent violated Sec. 8(a)(5) and
(1). Contrary to his colleagues, Chairman Pearce would adopt the
judge’s finding.
Member Hayes joins his colleagues only as to the findings that the
Respondent is a single employer; that it unlawfully threatened employ-
ees that the shop would never be unionized and that if they engaged in a
strike their employment would be terminated; delayed providing re-
quested information; and failed to bargain over the effects of the clos-
ing of the Naperville facility. He dissents from the other unfair labor
practices findings as explained in his separate opinion.
To lawfully withdraw recognition, the Respondent
must show that the Union no longer enjoys a majority
because the unit, which has been combined with similar
employees, is no longer an appropriate unit for bargain-
ing because it does not have a distinct identity from the
larger group of employees. Serramonte Oldsmobile, 318
NLRB 80, 104 (1995), enfd. in relevant part 86 F.3d 227
(D.C. Cir. 1996). The Respondent argues that the former
Naperville mechanics no longer have an identifiable
community of interest separate from the Lisle mechanics
because the unit employees now work side-by-side with
the Lisle employees. In addition, the Naperville employ-
ees have the same supervision, terms and conditions of
employment, uniforms, work assignments, skill set, train-
ing, and job functions as the Lisle employees. Typically,
the above facts would be sufficient to find “compelling
circumstances” because the unit employees no longer
have an identity separate from the larger group. Here,
however, the Respondent is able to make the above
claims only because of its other unfair labor practices.
More specifically, the Respondent failed to bargain
over the effects of the merger of the Lisle and Naperville
operations in violation of Section 8(a)(5). As a result,
the Respondent, without bargaining, made a number of
unilateral changes to the Naperville mechanics’ terms
and conditions of employment—again in violation of
Section 8(a)(5). Prior to the relocation, the unit employ-
ees enjoyed significantly different terms and conditions
of employment than those of the Lisle employees, the
continuation of which should have been bargained over
during effects bargaining concerning the employees’
transfer rights before the closing of the Naperville shop
and the relocation of the employees. In determining
whether an established bargaining unit retains its distinct
identity, we do not consider the effects of the Respond-
ent’s unlawful, unilateral changes to the existing unit
employees’ terms and conditions of employment,6 as
giving weight to such changes would reward the employ-
er for its unlawful conduct. See Comar, Inc., 349 NLRB
342, 357–358 (2007). The obligation to bargain over the
effects of the closing of the Naperville facility entailed an
obligation to bargain over the transfer of employees to
the Lisle facility, including their initial wages, benefits,
seniority rights, and working conditions at the new loca-
tion, including whether they would have continued to
work together as a distinct group and even whether they

6 Thus, contrary to the dissent’s suggestion that our holding some-
how imposes speculative contract terms on the Respondent, our holding
is merely that the Respondent cannot rely on its unlawful unilateral
changes in existing terms of employment in defense of its withdrawal
of recognition.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2254
would continue to be represented.7 Consequently, the
Respondent’s failure to engage in effects bargaining
makes it impossible to assess what the terms and condi-
tions of the Naperville employees would have been after
the relocation, had the Respondent not acted unlawfully.
See Deaconess Medical Center, 314 NLRB 677, 677 fn.
1 (1994) (finding that the employer could not rely on the
fact that a consolidated group of employees shared the
same wages and benefits because the shared benefits
were a result of the employer’s failure to bargain); Holly
Farms Corp., 311 NLRB 273, 279 fn. 25 (1993) (same).8
We find that the Respondent’s failure to engage in effects
bargaining and its unlawful unilateral changes have

7 The dissent argues that the Respondent’s effects bargaining obliga-
tion is limited to “layoffs, severance pay, health insurance coverage and
conversion rights, preferential hiring at other of the employer’s opera-
tions, and reference letters for jobs with other employers,” and does not
include terms and conditions of employment at the new facility. But the
cases the dissent cites for the last proposition simply hold that the union
has no right to bargain concerning the terms and conditions of all em-
ployees at the new location. The obligation to bargain about preferen-
tial hiring and transfer does entail an obligation to bargain about the
terms of employment of the employees so hired or transferred and that
is what is at issue here. Thus, the Board has observed, “it is well settled
that effects bargaining encompasses ‘issues such as severance pay,
seniority, pensions, health insurance, [and] job security.’” Friedman’s
Express, Inc., 315 NLRB 971, 971 (1994). Even more specifically, the
Board has explained, “Even if one were to accept the Respondent’s
claim that the unit ceased to exist . . . the Company would still have an
obligation to bargain over the effects of the relocation of unit work
from the [old] facility to the [new] facility. That obligation includes
bargaining over the relocated workers’ wages, work locations, sched-
ules, carryover of seniority, and other terms and conditions of employ-
ment at the new plant.” Comar, supra at 354. In other words, the Re-
spondent had an obligation to bargain about whether Naperville em-
ployees would be hired at Lisle and, if so, what their initial terms and
conditions of employment would be and the dissent cites no case to the
contrary. This is the obligation the Respondent did not respect. Rich-
mond Convalescent Hospital, 313 NLRB 1247, 1248–1249 (1994).
The dissent suggests that the Board has declined to find unfair labor
practices based on what might have resulted from effects bargaining.
But Brown Truck & Trailer Mfg. Co., 106 NLRB 999, 1002 (1953), did
not involve an employer claiming to have shed its bargaining obligation
to represented employees based on changes made in derogation of its
effects bargaining obligation, but a union making the speculative claim
that effects bargaining would have resulted in a sufficient number of
employees of the formerly represented plant transferring to an unrepre-
sented plant that the union would have become the representative of all
the employees at the latter plant. Cooper Thermometer Co. v. NLRB,
376 F.2d 684, 690 (2d Cir. 1967), stands for the same inapposite propo-
sition as the dissent itself explains.
8 The dissent distinguishes Holly Farms and Deaconess on the
grounds that “they do not involve fundamental changes in the nature of
operations resulting in full integration of unit with nonunit employees
as occurred here.” But the holding in those two cases is that the Board
will not look at the degree of integration, whether full or partial, if it
was the result of an unlawful failure to bargain. As the Board made
clear in Holly Farms, “many of the factors relied on by the Respond-
ents to support their contention that the bargaining unit no longer re-
mained appropriate were the result of unlawful unilateral changes.”
311 NLRB at 279.
tainted the Respondent’s withdrawal of recognition and
made it impossible to determine whether the Naperville
unit would have maintained sufficiently unique charac-
teristics to remain an appropriate unit for bargaining.9
In light of the long history of representation, the Re-
spondent’s failure to bargain over the effects of the Na-
perville shutdown and relocation of employees, and the
Naperville mechanics’ distinct employment terms prior
to the unlawful changes, the Respondent has not shown
compelling circumstances permitting it to unilaterally
end its bargaining relationship with the Union midterm
of the existing collective-bargaining agreement.
AMENDED REMEDY
We amend the remedy as stated at footnote 2, above.
Further, in addition to the remedy set forth by the judge,
and having found that the Respondent violated Section
8(a)(5) and (1) by withdrawing recognition from the Un-
ion, we shall order that the Respondent cease and desist
such conduct and, on request, bargain with the Union in
the bargaining unit described below, with respect to
wages, hours, and other terms and conditions of em-
ployment and, if an agreement is reached, embody it in a
signed document. The Respondent shall also bargain in
good faith regarding the effects of the relocation of the
unit employees.
For the reasons set forth in Caterair International, 322
NLRB 64 (1996), we find that an affirmative bargaining
order is warranted in this case as a remedy for the Re-
spondent’s unlawful withdrawal of recognition. We ad-
here to the view that an affirmative bargaining order is
“the traditional, appropriate remedy for an 8(a)(5) refusal
to bargain with the lawful collective-bargaining repre-
sentative of an appropriate unit of employees.” Id. at 68.
In several cases, however, the U.S. Court of Appeals for
the District of Columbia Circuit has required that the
Board justify, on the facts of each case, the imposition of
such an order. See, e.g., Vincent Industrial Plastics v.
NLRB, 209 F.3d 727 (D.C. Cir. 2000); Lee Lumber &

9 Our dissenting colleague argues that we are requiring the Respond-
ent to bargain in an inappropriate unit. But we hold that the Respond-
ent cannot rely on its unfair labor practices to show that the former
Naperville mechanics lack a distinct community of interest. Moreover,
the order in this case requires that the Respondent revoke the unilateral
changes in the former Naperville employees’ terms and conditions of
employment. Accordingly, we find that the Respondent has failed to
show compelling circumstances to overcome the parties’ 20-year bar-
gaining relationship and the distinct terms and conditions of employ-
ment of the Naperville mechanics, and thus the existing unit remains
appropriate at least until the Respondent, in full compliance with its
duty to bargain, integrates the two sets of employees and standardizes
their terms of employment. Abbott-Northwestern Hospital, 274 NLRB
1063 (1985), cited in the dissent, is distinguishable because the Board
did not consider the history of collective bargaining in that case and
thus did not apply the standard described above.
NAPERVILLE JEEP/DODGE 2255
Bldg. Material v. NLRB, 117 F.3d 1454, 1462 (D.C. Cir.
1997); and Exxel/Atmos, Inc. v. NLRB, 28 F.3d 1243,
1248 (D.C. Cir. 1994). In Vincent, supra, the court
summarized its requirement that an affirmative bargain-
ing order “must be justified by a reasoned analysis that
includes an explicit balancing of three considerations:
‘(1) the employees’ Section 7 rights; (2) whether other
purposes of the Act override the rights of employees to
choose their bargaining representatives; and (3) whether
alternative remedies are adequate to remedy the viola-
tions of the Act.’” Id. at 738.
Although we respectfully disagree with the court’s re-
quirement for the reasons set forth in Caterair, supra, we
have examined the particular facts of this case as the
court requires and find that a balancing of the three fac-
tors warrants an affirmative bargaining order.10
(1) An affirmative bargaining order in this case vindi-
cates the Section 7 rights of the unit employees who were
denied the benefits of collective bargaining by the Re-
spondent’s withdrawal of recognition and resulting re-
fusal to bargain with the Union for a successor collec-
tive-bargaining agreement, and is particularly appropriate
here where the Respondent relocated employees and sig-
nificantly and unlawfully changed their employment
terms. At the same time, an affirmative bargaining order,
with its attendant bar to raising a question concerning the
Union’s continuing majority status for a reasonable time,
does not unduly prejudice the Section 7 rights of em-
ployees who may oppose continued union representation
because the duration of the order is no longer than is rea-
sonably necessary to remedy the ill effects of the viola-
tion. It is only by restoring the status quo ante and re-
quiring the Respondent to bargain with the Union for a
reasonable period of time that the employees will be able
to fairly assess for themselves the Union’s effectiveness
as a bargaining representative in light of the move to the
new facility and the Respondent’s unlawful unilateral
changes to their employment terms.
(2) An affirmative bargaining order also serves the
policies of the Act by fostering meaningful collective
bargaining and industrial peace. That is, it removes the
Respondent’s incentive to delay bargaining in the hope
of discouraging support for the Union. It also ensures
that the Union will not be pressured by the Respondent’s
withdrawal of recognition to achieve immediate results at
the bargaining table following the Board’s resolution of
its unfair labor practice charges and issuance of a cease-
and-desist order. Providing this temporary period of

10 While Member Hayes agrees with the D.C. Circuit that a case-by-
case analysis is required to determine if this remedy is appropriate, he
finds that the Respondent’s withdrawal of recognition was lawful and
does not join this portion of the decision.
insulated bargaining will also afford employees a fair
opportunity to assess the Union’s performance in an at-
mosphere free of the Respondent’s unlawful conduct.
(3) As an alternative remedy, a cease-and-desist order,
alone, would be inadequate to remedy the Respondent’s
withdrawal of recognition and refusal to bargain with the
Union because it would allow another challenge to the
Union’s majority status before the employees had a rea-
sonable time to regroup and bargain with the Respondent
through their chosen representative in an effort to reach a
collective-bargaining agreement. We find that these cir-
cumstances outweigh the temporary impact the affirma-
tive bargaining order will have on the rights of employ-
ees who oppose continued union representation. For all
the foregoing reasons, we find that an affirmative bar-
gaining order with its temporary decertification bar is
necessary to fully remedy the violations in this case. In
order to provide employees with the opportunity to fairly
assess for themselves the Union’s effectiveness as a bar-
gaining representative, the bargaining order requires the
Respondent to bargain with the Union for a reasonable
period of time. See, e.g., Vincent/Metro Trucking, LLC,
355 NLRB 289, 290 (2010).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Dodge
of Naperville, Inc. and Burke Automotive Group Inc.
d/b/a Naperville Jeep/Dodge, a single employer, Naper-
ville, Illinois, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(d).
“(d) Telling employees that they will no longer receive
union benefits, that they no longer work in a union shop,
that the dealership will never be a union shop, and that
they would be discharged if they went on strike.”
2. Substitute the following for paragraph 2(k).
“(k) Within 14 days after service by the Region, post at
its facilities in Lisle, Illinois, and Naperville, Illinois,
copies of the attached notice marked “Appendix.”23 Cop-
ies of the notice, on forms provided by the Regional Di-
rector for Region 13, after being signed by the Respond-
ent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. In addition to physi-
cal posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if the Re-
spondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2256
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current and former unit employees employed by the
Respondent at any time since June 1, 2009.”
3. Substitute the attached notice for that of the admin-
istrative law judge.

MEMBER HAYES, dissenting in part.
In the wake of the Chrysler Motors bankruptcy, the
Respondent lost a franchise to sell and service Chrysler
vehicles in Naperville, Illinois. Rather than simply lay
off its work force, the Respondent offered the six Naper-
ville mechanics, who were represented by the Union,
positions at its nearby facility in Lisle, Illinois, where it
already employed 14 unrepresented mechanics to per-
form precisely the same work. Upon the consolidation of
the two groups at Lisle, the Respondent properly deter-
mined that the Union no longer enjoyed majority status
and accordingly withdrew recognition. There is no dis-
pute that the mechanics in the combined group worked
side-by-side performing the same work under the same
supervision.1 Further, there is no claim that the Re-
spondent was obligated to bargain over the decision to
close the Naperville facility and to relocate the mechan-
ics working there to Lisle. The Respondent failed, how-
ever, to bargain over the effects of this decision.
Under the Board’s long-established consolidation and
relocation precedent, the Respondent’s refusal to recog-
nize the Union as representative of the relocated Naper-
ville mechanics was perfectly lawful. Their separate unit
identity was extinguished, and there is no basis for find-
ing that the Union had majority support in the larger con-
solidated employee group. My colleagues, however, con-
trive to distinguish that precedent and to impose a con-
tinuing bargaining obligation on the Respondent for the
former Naperville unit employees, based on the Re-
spondent’s effects bargaining violation.2 First, they con-

1 The judge referred to the relocation as “temporary” based on
Chrysler’s requirement that the Respondent move its entire merged
operation back to Naperville upon a remodel of that facility. Nothing
indicates that the consolidation was temporary, regardless of the ulti-
mate location of the merged operation, and the judge did not find that it
was. Nor did the judge find that the Naperville mechanics might be
split from the Lisle mechanics in the future to somehow re-establish
their identity as a discrete group. Thus, his reference to the temporary
nature of the move is irrelevant to the appropriate analysis.
2 I agree with my colleagues that the Respondent violated Sec.
8(a)(5) by its failure to engage in effects bargaining, but only insofar as
that term is understood under the law as described infra, and not as my
colleagues expand it here. The usual remedy for an effects-bargaining
violation is that provided in Transmarine Navigation Corp., 170 NLRB
389, 391 (1968). In accordance with my dissent in Kadouri Interna-
tend that any common working conditions at Lisle at-
tributable to unilateral changes made without bargaining
over the effects of the relocation must be ignored in de-
termining whether the relocated Naperville mechanics
have a continuing identifiable separate community of
interests. Next, they hypothesize that the Respondent
might have voluntarily negotiated an agreement in effects
bargaining about other working conditions that would
further distinguish the terms and conditions of employ-
ment of the relocated Naperville mechanics from those of
their Lisle co-workers to such an extent that the Naper-
ville group could be a separate appropriate bargaining
unit. The majority then proceeds to presume that result
and imposes a duty to bargain in what is an inappropriate
fractured unit. Because today’s decision represents a dis-
tortion of Board precedent both as to statutory bargaining
obligations and as to the appropriate remedy for effects
bargaining violation, I respectfully dissent.3
Under well-established Board law, an employer is not
obligated to continue to recognize a union as the bargain-
ing representative of one group of its employees “when
that represented group is merged with an unrepresented
group in such a manner that an accretion cannot be found
and the original represented group is no longer identifia-
ble.”4 The test is whether the previously represented unit

tional Foods, 356 NLRB 1201, 1201 fn. 1 (2011), I do not agree with
that portion of the remedy requiring that the minimum backpay due
employees should not be less than 2 weeks’ pay, without regard to
actual losses incurred, and I would limit the remedy only to those em-
ployees who were adversely affected by the Respondent’s unlawful
action. Of course, my colleagues’ imposition of a continuing bargain-
ing obligation at the Lisle facility subsumes the need for them to im-
pose a Transmarine remedy.
3 Since I would find that the Respondent lawfully withdrew recogni-
tion, I would also reverse the judge’s findings that the Respondent
unlawfully threatened bargaining unit employees that they would no
longer receive union benefits or work in a nonunion shop; constructive-
ly discharged employees; unlawfully repudiated the collective-
bargaining agreement with the Union; and unlawfully made unilateral
changes to unit employees’ terms and conditions of employment.
4 Geo. V. Hamilton, Inc., 289 NLRB 1335, 1339 (1988) (finding unit
with approximately 11-year bargaining history no longer an appropriate
unit after consolidation with equal number of nonrepresented employ-
ees performing the same work, in the same facility, under the same
supervision). Accord: Nott Co., 345 NLRB 396, 400–401 (2005) (no
accretion to represented unit where employer merged two equal groups
of employees performing same work); Kelly Business Furniture, 288
NLRB 474 (1988) (finding newly certified unit no longer appropriate
after employer relocated and consolidated it with larger group of unrep-
resented employees); Abbott-Northwestern Hospital, 274 NLRB 1063,
1064 (1985) (consolidation of represented unit with larger group of
nonunit employees rendered bargaining unit inappropriate, and em-
ployer was not obligated to maintain separate employment terms for the
formerly represented employees).
NAPERVILLE JEEP/DODGE 2257
retains a distinct community of interest so as to remain
appropriate for bargaining.5
Applying that test here, the Respondent’s bargaining
obligation ceased when the Naperville mechanics relo-
cated to Lisle. The Naperville and Lisle mechanics have
performed the same work with the same skills and train-
ing both before and after the merger. They now do so in
the same facility under the same supervision. Thus, the
prior bargaining history in the Naperville unit is the sole
factor distinguishing the former Naperville mechanics
from their colleagues in Lisle, and even the majority
concedes that factor alone is not enough to establish that
the Naperville mechanics retained an identity as a sepa-
rate unit. Moreover, because the Naperville mechanics
comprise only 6 of the 20 mechanics at Lisle, no accre-
tion can be found and the original represented group is
no longer an appropriate unit for bargaining. See Geo. V.
Hamilton, above. Thus, requiring continued recognition
of the Union as to the Naperville mechanics would con-
tradict established unit principles by requiring the Re-
spondent to bargain in a fractured unit that includes some
but not all of the mechanics. Abbott-Northwestern Hos-
pital, above, 274 NLRB at 1064.
The majority inexplicably refuses to apply these estab-
lished principles in deciding this case. Instead, my col-
leagues issue an affirmative bargaining order for a frac-
tured unit limited to the mechanics formerly employed at
Naperville on the basis that the Respondent failed to en-
gage in effects bargaining, which in their view might
have resulted in a continuation of a separate unit for the-
se employees. In effect, they presume that the unit re-
mains appropriate because, in their view, terms and con-
ditions of employment changed as a result of the consol-
idation and relocation must be ignored in a community of
interests analysis and, in any event, the parties theoreti-
cally could have agreed in effects bargaining to such
different terms and conditions as would give the Naper-
ville group a continuing separate identity. That rationale
contradicts established principles governing bargaining
obligations under the Act and cannot be reconciled with
existing precedent.6

5 Abbott-Northwestern Hospital, supra. A community-of-interest
analysis involves multiple factors, including:
[A] difference in method of wages or compensation; different hours of
work; different employment benefits; separate supervision; the degree
of dissimilar qualifications, training and skills; differences in job func-
tions and amount of working time spent away from the employment
or plant situs . . . the infrequency or lack of contact with other employ-
ees; lack of integration with the work functions of other employees or
interchange with them; and history of bargaining.
Home Depot USA, 331 NLRB 1289, 1290 (2000), quoting Kalamazoo
Paper Box Corp., 136 NLRB 134, 137 (1962).
6 My colleagues rely on Deaconess Medical Center, 314 NLRB 677
(1994), and Holly Farms Corp., 311 NLRB 273 (1993), enfd. 48 F.3d
The Board lacks the authority to require bargaining in
an inappropriate unit.7 Yet today’s decision requires ex-
actly that by ordering the Respondent to bargain over
new terms and conditions of employment for 6 of the 20
mechanics at Lisle, with the apparent goal of undoing the
functional integration of the combined group and re-
establishing the Naperville cohort as a distinct unit. The
Respondent’s effects bargaining obligation provides no
support for this step, as that obligation is limited to such
terms and conditions of employment as “layoffs, sever-
ance pay, health insurance coverage and conversion
rights, preferential hiring at other of the employer’s oper-
ations, and reference letters for jobs with other employ-
ers.”8 While effects bargaining in a plant relocation situa-
tion may include bargaining over transfers to a new facil-
ity, it does not include bargaining over terms and condi-
tions of employment at that facility if the union has not
established majority status there. Brown Truck & Trailer
Mfg. Co.9 See also Brown-McLaren Mfg. Co.10 In

1360 (4th Cir. 1995), affd. on other grounds 517 U.S. 392 (1996), but
these cases are inapposite as they do not involve fundamental changes
in the nature of operations resulting in the full integration of unit with
nonunit employees as occurred here. In Deaconess, a represented unit
continued working at a separate facility under separate first-line super-
vision from the nonunit employees with whom the Respondent sought
to accrete them. Hence, there was no integration of employees and the
unit remained appropriate for bargaining. In Holly Farms, a bargaining
unit did not lose its separate identity based merely on the respondents’
intention to merge units, as there had been no integration at the time the
respondents withdrew recognition. As the Board explained, “in deter-
mining whether accretion is proper, unless there is a well-defined plan
or timetable for achieving full functional integration of operations, the
changed nature of the operation should be assessed at the time the
withdrawal of recognition occurred.” Id. at 279 (emphasis added).
There, “where at the time of the withdrawal of recognition there was no
integration of operations or even detailed plans” for integration, the
respondents’ refusal to bargain was unlawful. Id. Here, in contrast to
Holly Farms, at the time of the withdrawal of recognition, Naperville
was closed and the former unit had lawfully merged with the larger
group at Lisle.
7 Russelton Medical Group, 302 NLRB 718 (1991) (an employer’s
refusal to recognize an inappropriate unit does not violate the Act).
8 Allison Corp., 330 NLRB 1363, 1365 fn. 14 (2000); Los Angeles
Soap Co., 300 NLRB 289, 295 (1990) (in addition to the above, pen-
sion benefits and retraining funds are appropriate subjects of effects
bargaining). See also Yorke v. NLRB, 709 F.2d 1138, 1143 (7th Cir.
1983) (effects bargaining “provides the Union with an opportunity to
bargain in the employees’ interest for such benefits as severance pay,
payments into the pension fund, preferential hiring if the employer
continues operating at other plants, and reference letters with respect to
other jobs.”) (citing First National Maintenance Corp. v. NLRB, 452
U.S. 666, 681–682 (1981)), cert. denied 465 U.S. 1023 (1984).
9 106 NLRB 999 (1953). There, the respondent unlawfully failed to
bargain over the effects of a plant relocation and discharged unit em-
ployees. The Board held that the respondent was required to give the
union “the opportunity to bargain with respect to the contemplated
move as it affected the employees, such as the placement of the [em-
ployees] in positions at [the new facility].” Id. at 1000. But the Board
expressly declined to require the respondent to recognize the union at
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2258

the new facility based on what could have happened during bargaining.
Id. at 1002. The Board reasoned that it was possible that employees
would have transferred to the new plant had the respondent bargained,
but, “[w]e cannot assume . . . that, even if such agreement had been
reached, [unit] employees would have transferred to [the new facility]
in numbers sufficient to constitute a majority of the employee comple-
ment.” Id. The Board ordered the respondent to bargain over the meth-
od, terms, and conditions by which the unit employees may “obtain
employment” at the new facility (id. at 1003), but not over the actual
terms of employment there. Thus, I reject as unfounded any implica-
tion in the majority opinion suggesting that the bargaining obligation
found by the Board in Brown Truck & Trailer Mfg. Co. encompassed
the terms and conditions of employment of former unit employees at
the new location.
10 34 NLRB 984, 1015 (1941).
In Holly Farms, supra, 311 NLRB at 279 fn. 25, the Board indicated
that the respondents were obligated to bargain over changes in pay,
work locations, schedules, and other employment terms resulting from
the integration of operations as effects of the integration decision. See
also Comar, Inc. (Comar I), 339 NLRB 903, 910–911 (2003), enfd.
mem. 111 Fed.Appx. 1 (D.C. Cir. 2004), a case cited by the judge.
There, where the respondent relocated a unit intact and there had been
no integration or accretion with other employees, the unit remained
appropriate for bargaining, and unilateral changes the respondent made
to employment terms were unlawful. In that context, the effects bar-
gaining obligation included negotiations over initial terms and condi-
tions of employment at the new location. In both of those cases, how-
ever, operations had not been integrated at the time the employers
withdrew recognition and they were, accordingly, under a continuing,
general obligation to bargain over those topics in any event. This pass-
ing reference to effects bargaining thus was not essential to a determi-
nation that the respondents’ conduct was unlawful and as such is not
persuasive authority to find that those topics are appropriate for bar-
gaining where, as here, there has been a fundamental change in the
nature of operations. Regardless, any negotiations over initial terms
does not without more establish an ongoing bargaining obligation or an
obligation to maintain those terms pursuant to NLRB v. Katz, 369 U.S.
736 (1962).
My colleagues also cite dicta from the administrative law judge in a
later proceeding in Comar (Comar II) to contend that “the Board has
explained” that
Even if one were to accept the Respondent’s claim that the unit ceased
to exist . . . the Company would still have an obligation to bargain
over the effects of the relocation of unit work from the [old] facility to
the [new] facility. That obligation includes bargaining over the relo-
cated workers’ wages, work locations, schedules, carryover of seniori-
ty, and other terms and conditions of employment at the new plant.
citing Comar (II), 349 NLRB 342, 354 (2007). This dicta is inapposite.
First, as explained above, in the prior proceeding (Comar I, supra), the
withdrawal of recognition was found unlawful precisely because the re-
spondent maintained the separate identity of the unit after relocating the
employees. Second, unlike this case, the employer in Comar could not
justify withdrawing recognition. Third, my colleagues omit relevant lan-
guage from the passage they quote. That language reads: “Even if one were
to accept the Respondent’s claim that the unit ceased to exist subsequent to
the May 2001 hearing, the Company would still have an obligation to bar-
gain over the effects of the relocation” (emphasis added). Thus, the judge
was addressing the respondent’s argument that it was not obligated to en-
gage in effects bargaining because, subsequent to the unfair labor practices
proceeding in the underlying case, and approximately two years after the
relocation of the unit, the unit ceased to exist. The judge was not describing
an employer’s effects bargaining obligation after a lawful change in opera-
tions that results in the integration of unit with nonunit employees. The latter
Brown-McLaren, where the respondent closed its plant,
laid off employees, and relocated operations without bar-
gaining, the Board acknowledged that the bargaining
obligation had been extinguished and limited its remedial
order to a requirement that the respondent put the laid-off
employees on a preferential hiring list. Our cases thus
make clear that the functional integration of employees
in a single facility following the lawful closure of anoth-
er business is not a mandatory subject of bargaining. The
majority’s conception of effects bargaining flouts these
principles.11
My colleagues also err by basing unfair labor practice
findings on what the parties “could” have bargained over
and achieved during effects bargaining. First, even if the
Respondent had initially continued the former Naperville
mechanics’ wages and benefits, that would not establish
the appropriateness of the unit, nor obligate the Re-
spondent to maintain those terms. Abbott-Northwestern
Hospital, above.12 Second, even if the Respondent did
have an effects-bargaining obligation to negotiate over
proposals that could have resuscitated the unit, the mere
possibility that the Respondent “could” have agreed to
such terms is not a valid basis for the result my col-
leagues have reached. As noted above, the Board has
expressly declined to find unfair labor practices based on
what could have been achieved had an employer satisfied
an effects-bargaining obligation. Brown Truck & Trailer
Mfg. Co., above.13 Further, by finding unfair labor prac-

is what occurred here, and the distinction cogently illustrates why this case
and cases such as Comar require different results.
11 My colleagues cite no precedent for their apparent view that pro-
posals that the former Naperville technicians work under separate su-
pervision at Lisle, or that they remain represented despite the merger,
would have been mandatory subjects of bargaining. See Electrical
Workers Local 428 (Kern County Chapter NECA), 277 NLRB 397,
411–412 (1985) (choice of supervision is an employer’s prerogative
and not a mandatory bargaining subject); Triple A Maintenance Corp.,
283 NLRB 44 fn. 2 (1987) (clause requiring recognition of union in
citywide unit was permissive subject of bargaining).
12 There, after merging unit employees with a larger group, the em-
ployer briefly continued the contractual terms and conditions of em-
ployment for “a small portion of a larger group . . . even though all of
them performed the same tasks under common supervision at the same
facility.” Id. at 1064. The Board recognized that it was unworkable for
the respondent to have to apply different terms to different employees
in the same integrated work force. Id. The majority asserts that Abbott-
Northwestern is distinguishable because “the Board did not consider
the history of collective bargaining in that case and thus did not apply
the standard” my colleagues have selected. In fact, the Board noted the
almost 10-year bargaining history before the respondent’s lawful mer-
ger of operations and its subsequent, lawful decision to unilaterally
change the employment terms of the merged employees and withdraw
recognition. See id. at 1063. That the Board nevertheless found these
actions lawful, applying the same standard I do, only underscores the
extent to which the majority has again departed from precedent.
13 Accord: Cooper Thermometer Co. v. NLRB, 376 F.2d 684, 690
(2d Cir. 1967) (ordering effects bargaining over plant relocation, in-
NAPERVILLE JEEP/DODGE 2259
tices and imposing a general bargaining order based on
what could (but very likely would not) have occurred
during effects bargaining, my colleagues effectively re-
quire that the parties achieve that particular result, which
is beyond our authority.14
In short, the result of a merger of operations under the-
se circumstances is not a continuing bargaining obliga-
tion in the former unit but a possible question concerning
representation in the combined unit. My colleagues’ con-
trary conclusion exceeds the powers conferred on this
agency by the Act. Quite simply, the remedy for the Re-
spondent’s failure to engage in effects bargaining about
its decision to close the Naperville facility and to transfer
mechanics to the Lisle facility cannot be contorted to
require the Respondent to recognize and bargain with the
Union for an inappropriate fractured unit consisting sole-
ly of the transferred mechanics.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT fail and refuse to bargain in good faith
with the Automobile Mechanics Local No. 701, Interna-
tional Association of Machinists and Aerospace Work-

cluding bargaining about placement of employees at new plant; but
reversing the Board’s finding that, had the respondent bargained over
the transfer of employees to the new plant, enough employees would
have transferred to establish the union’s majority status there), enfg. in
part 160 NLRB 1902 (1966).
14 H. K. Porter Co. v. NLRB, 397 U.S. 99, 102 (1970) (the Board is
without power to compel a party to agree to any substantive contractual
provision of a collective-bargaining agreement). As the court of ap-
peals recognized in Cooper Thermometer,
A sanction for refusal to bargain that would treat the guilty party as if
he had agreed to what the other party demanded although the evidence
shows he would have done nothing of the sort would give insufficient
respect to Congress’ direction in 8(d) that the obligation to bargain
“does not compel either party to agree to a proposal or require the
making of a concession.”
376 F.2d at 690.
ers, AFL–CIO (the Union) as the exclusive collective-
bargaining agent of employees in the Dodge of Naper-
ville bargaining unit (unit employees). The Dodge of
Naperville bargaining unit includes all technicians, ap-
prentices, lube rack technicians, and semi-skilled techni-
cians who were employed at our facility in Naperville,
Illinois (Naperville facility), immediately prior to the
June 2009 relocation of employees to our facility in
Lisle, Illinois (Lisle facility), but excludes all office cler-
ical employees and guards, professional employees and
supervisors as defined in the Act.
WE WILL NOT withdraw recognition from the Union as
the exclusive collective-bargaining agent of the unit em-
ployees due to the June 2009 relocation of operations and
employees from the Naperville facility to the Lisle facili-
ty.
WE WILL NOT repudiate the most recent collective-
bargaining agreement that we entered into with the Un-
ion, and which covers unit employees.
WE WILL NOT tell you that you will no longer receive
union benefits, that you no longer work in a union shop,
that the dealership will never be a union shop, and that
you will be discharged if you go on strike.
WE WILL NOT tell you that we do not recognize the Un-
ion as your collective-bargaining representative.
WE WILL NOT constructively discharge you by requir-
ing you to work without union representation and under
unilaterally changed terms and conditions of employ-
ment.
WE WILL NOT make unilateral changes, without notice
to and bargaining with the Union, regarding your terms
and conditions of employment.
WE WILL NOT refuse to meet and bargain in good faith
with the Union with respect to the effects on the unit
employees of the June 2009 relocation of operations and
employees from the Naperville facility to the Lisle facili-
ty.
WE WILL NOT fail to provide and/or unreasonably de-
lay providing, information requested by the Union that is
relevant to and necessary for the Union to fulfill its role
performance of its functions as the collective-bargaining
representative of our unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed to you by Section 7 of the Act.
WE WILL, on request, bargain in good faith with the
Union as the exclusive collective-bargaining agent of
unit employees concerning terms and conditions of em-
ployment and, if an understanding is reached, embody
the understanding in a signed agreement.
WE WILL apply and restore the terms and conditions of
employment that were applicable to the unit employees
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2260
under the most recent collective-bargaining agreement
covering the unit employees, until such time as we reach
agreement with the Union for a new collective-
bargaining agreement or a lawful impasse based on
good-faith negotiations.
WE WILL revoke the unilateral changes we made to
your terms and conditions of employment since our un-
lawful repudiation of the collective-bargaining agree-
ment.
WE WILL make you whole for losses of wages and oth-
er benefits you suffered as a result of our failure to abide
by the terms of the collective-bargaining agreement, in-
cluding by reimbursing you for medical premiums, med-
ical expenses, and other expenses you incurred as a result
of such failure, with interest.
WE WILL remit all payments to health care, pension,
and/or other funds, that we were required to make under
the most recent collective-bargaining agreement with the
Union, but which we failed to make.
WE WILL, on request by the Union, bargain in good
faith regarding the effects of the relocation of operations
and employees from the Naperville facility to the Lisle
facility.
WE WILL make you whole for any losses you suffered
as a result of our failure and refusal to bargain with the
Union regarding the effects of the relocation of opera-
tions and employees from the Naperville facility to the
Lisle facility.
WE WILL, within 14 days from the date of this Order,
offer Robert Adams and Mike Marjanovich full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prej-
udice to their seniority or any other rights or privileges
previously enjoyed.
WE WILL make Robert Adams and Mike Marjanovich
whole for any loss of earnings and other benefits result-
ing from their discharge, less any net interim earnings,
plus interest.

DODGE OF NAPERVILLE, INC. AND BURKE
AUTOMOTIVE GROUP, INC. D/B/A NAPERVILLE
JEEP/DODGE

Richard S. Andrews, Esq., for the General Counsel.
James F. Hendricks Jr., Esq. (Ford & Harrison, LLP), of Chi-
cago, Illinois, for the Respondent.
Sherrie E. Voyles, Esq. (Jacobs, Burns, Orlove, Stanton & Her-
nandez), of Chicago, Illinois, for the Charging Party.
DECISION
STATEMENT OF THE CASE
PAUL BOGAS, Administrative Law Judge. I heard this case in
Chicago, Illinois, on March 15 and 16, 2010. The Automobile
Mechanics Local No. 701, International Association of Machin-
ists and Aerospace Workers, AFL–CIO (the Union or Local
701) filed the original charge on July 8, 2009, and amended
charges on July 28, December 28, 2009, and January 19, 2010.1
The Regional Director for Region 13 of the National Labor
Relations Board (the Board) filed the initial complaint on De-
cember 17, 2009, and the amended complaint (the complaint)
on January 19, 2010. The complaint alleges that Dodge of
Naperville, Inc., and Burke Automotive Group d/b/a Naperville
Jeep/Dodge, a single employer, (referred to collectively as the
Respondent) committed various violations of the National La-
bor Relations Act (the Act) at the time it ceased operations at a
facility where the mechanics were organized by the Union and
continued operations at its nonunion facility. More specifical-
ly, the complaint alleges that the Respondent violated Section
8(a)(5) and (1): by relocating the unionized mechanics to its
nonunion facility without bargaining over the effects of that
relocation; by repudiating the collective-bargaining agreement
covering those mechanics; by unilaterally changing mechanics’
terms and conditions of employment; by withdrawing recogni-
tion from the Union; and by failing to provide the Union with
requested information relating to the termination of operations
at the union facility. The complaint further alleges that the
Respondent constructively discharged two of the bargaining
unit mechanics in violation of Section 8(a)(3) and (1) when it
required them to work without union representation and union
contractual benefits, and that it threatened employees in viola-
tion of Section 8(a)(1) by telling the union mechanics that after
the relocation they would no longer be unionized or have union
benefits, would never have a unionized store, and would be
discharged if they went on strike. The Respondent filed a time-
ly answer in which it denied committing any of the violations
alleged, and also denied that Dodge of Naperville and Burke
Automotive Group, Inc. are a single employer.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing finds of fact and conclusions of law.
FINDINGS OF FACT
I. JURISDICTION
Burke Automotive Group, Inc. d/b/a Naperville Jeep Dodge
(referred to individually as Burke Automotive or the Lisle facil-
ity),

a Delaware corporation with offices and a place of busi-
ness in Lisle, Illinois,2 is engaged in the operation of an auto-
mobile dealership. In conducting these business operations,
Burke Automotive, annually derives gross revenue in excess of
$500,000 and purchases and receives goods valued in excess of

1 The first amended complaint mistakenly states that the final
amended charge was filed on January 19, 2009, instead of 2010. The
exhibits, see GC Exh. 1(m), and the record as whole show that this is an
error and that the final amended charge was filed on January 19, 2010.
The timing of the charges was not raised as a defense to the allegations
in the complaint.
2 Burke Automotive Group, Inc. d/b/a Naperville Jeep/Dodge is lo-
cated in Lisle, Illinois, not as its name suggests, in Naperville, Illinois.
Dodge of Naperville is actually located in Naperville.
NAPERVILLE JEEP/DODGE 2261
$50,000 directly from points outside the State of Illinois. The
Respondent admits, and I find, that Burke Automotive has, at
all relevant times, been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
From September 2003, until at least June 20, 2009, Dodge of
Naperville, Inc. (individually Dodge of Naperville or the Na-
perville facility), an Illinois corporation with offices and places
of business in Naperville, Illinois, was

engaged in the operation
of an automobile dealership. In conducting these business op-
erations, Dodge of Naperville annually derived gross revenue in
excess of $500,000 and purchased and received goods valued in
excess of $50,000 directly from points outside the State of Illi-
nois. The Respondent admits, and I find, that from September
2003, until at least June 20, 2009, Dodge of Naperville has
been an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. In addition to each being
an employer under the Act as stated above, Burke Automotive
and Dodge of Naperville have, at all relevant times, collectively
been a single employer3 engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
Burke Automotive and Dodge of Naperville admit, and I
find, that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
This case involves two car dealerships—Burke Automotive
in Lisle, Illinois, and Dodge of Naperville, which is on the
same street in nearby Naperville, Illinois. Both of these dealer-
ships are in the business of selling and servicing Chrysler-
manufactured vehicles. The two entities are incorporated sepa-
rately, but Dodge of Naperville is a wholly owned subsidiary of
Burke Automotive. Edward Burke (Ed Burke) is the sole own-
er of Burke Automotive and, through that entity, is also the sole
owner of Dodge of Naperville.
Ed Burke has been the president of Burke Automotive since
1987. As of May 2009, Burke Automotive was authorized by
Chrysler, and licensed by the State of Illinois, to sell two brands
of Chrysler vehicles—Jeep and Dodge—at the Lisle facility.
Employees at the Burke Automotive facility in Lisle have, at
least prior to June 2009, not been represented by a union.
Ed Burke purchased the second dealership, Dodge of Naper-
ville, in 2003. In 1989, prior to the purchase, mechanics at the
second dealership elected to be represented by the Union and
that representation continued when Ed Burke acquired the facil-
ity.4 On September 22, 2005, Dodge of Naperville and the

3 I find that Burke Automotive and Dodge of Naperville are a single
employer under the applicable standards for the reasons set forth in the
“analysis and discussion” section of this decision.
4 The terms “mechanic” and “technician” are used interchangeably
in the record. The Respondent admits that the unit includes: “All tech-
nicians, apprentices, lube rack technicians, and semi-skilled technicians
employed by the Respondent at its Naperville, Illinois facility; but
excluding all office clerical employees and guards, professional em-
ployees and supervisors as defined in the Act.” The General Counsel’s
unit description also makes reference to the “body shop,” but it does
not appear that inclusion of that reference would change the reach of
the unit description. There is no dispute that as of June 19, 2009, there
Union executed a collective-bargaining agreement that was
effective, by its terms, from August 1, 2005, to July 31, 2009.
As part of Chrysler Motors bankruptcy proceedings in early
2009, the Chrysler Group obtained bankruptcy court permission
to cancel its franchise agreements with a number of dealerships.
When a dealership’s franchise was cancelled it meant that the
dealership could no longer sell new Chrysler-manufactured
vehicles. Among the franchises that Chrysler selected for can-
cellation were the Jeep and Dodge franchises operated by Ed
Burke at Burke Automotive in Lisle. Pursuant to Chrysler’s
selections, the bankruptcy court entered an order canceling
Burke Automotive’s Lisle franchises, effective June 9, 2009.5
The franchise for Dodge of Naperville, on the other hand, was
one of the franchises that Chrysler chose to continue in effect.
When, on May 13, 2009, the Chrysler Group informed Ed
Burke that it had selected the Lisle franchises for cancellation,
Ed Burke embarked on an effort to convince Chrysler to re-
verse its decision.6 After numerous contacts with Chrysler
officials, Ed Burke succeeded in persuading Chrysler to relent
to the extent that, at some time between June 9 and 17, Chrysler
told Ed Burke that instead of mandating the elimination of the
Lisle franchises, it was now giving the Respondent the choice
between cancellation of the franchise agreements for Lisle loca-
tion and cancellation of the franchise agreement for the Naper-
ville location. Transcript at page(s) (Tr.) 381–382. Ed Burke
chose to cancel the franchise agreement for the Naperville loca-
tion where the unit employees worked in order to revive the
Jeep and Dodge franchises as the Lisle location. According to
Ed Burke’s testimony, if he had not chosen to resume selling
new automobiles at the Lisle facility, he could have continued
to sell and service new Dodge vehicles at the unionized Dodge
of Naperville location.7

were six employees in the unit: Robert Adams, Donald Lein, Eddie
Lopez, Mike Marjanovich, Chris Miles, and Tony Zeka.
5 GC Exh. 22 (Order of the United States Bankruptcy Court for the
Southern District of New York in Case No. 09-50002, Dated 6/6/09).
6 The Respondent asks me to draw an adverse inference against the
General Counsel based on its failure to elicit the testimony of the
Chrysler Group official or officials who engaged in these negotiations.
It would not be appropriate to draw such an inference since the Chrys-
ler Group officials were not shown to be favorably disposed towards
the General Counsel or the Union. Electrical Workers Local 3
(Teknion, Inc.), 329 NLRB 337, 337 fn. 1 (1999) (stating that the ap-
propriate inquiry for a judge to make, when determining whether to
draw an adverse inference from a party’s failure to call a potential
witness, is whether the witness may reasonably be assumed to be favor-
ably disposed to the party); International Automated Machines, Inc.,
285 NLRB 1122, 1122–1123 (1987), enfd. mem. 861 F.2d 720 (6th Cir.
1988) (same). If anything, the Chrysler Group officials would appear
to have a commonality of interest with the Respondent, with which they
share certain business objectives and business agreements.
7 Ed Burke testified that the reasons he chose to retain the Lisle-
based franchises instead of the Naperville-based franchises were: in
Lisle he had franchises to sell both Jeep and Dodge brand vehicles
whereas in Naperville he only had a franchise to sell Dodge brand
vehicles; and he had more employees at the Lisle facility than at the
Naperville facility. That testimony is facially plausible and I credit it.
There is a related, but separate question, regarding Ed Burke’s moti-
vation for choosing to use Burke Automotive, rather than Dodge of
Naperville, as the surviving, active, corporate entity. The record shows
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2262
On June 17, 2009, Ed Burke signed agreements that author-
ized him to continue selling the Dodge and Jeep lines in Lisle,
and on June 19, 2009, an official for Chrysler approved the
agreements. At Chrysler’s insistence, Ed Burke agreed that in
17 months he would return the operation to the Naperville site
after completing renovations there.
The Respondent denies that Ed Burke selected the Dodge of
Naperville location for closure, and contends that Chrysler
made that selection. In its brief, the Respondent asserts that
“Mr. Burke was instructed by Chrysler to cease doing business
in Naperville beginning Saturday, June 20, 2009, and to start
selling at the Lisle facility.” Brief of Respondent at p. 6. That
assertion is contrary to the record evidence. Even the portions
of Ed Burke’s testimony that the Respondent cites as support
for its assertion (Tr. 102, 344, 378) show that Chrysler did not
require the Respondent to make the change. Rather Ed Burke
testified that, on June 19, Chrysler told him he was “author-
ized,” “approved,” and given the “go ahead,” to resume operat-
ing the franchises in Lisle, and to stop selling in Naperville.
(Tr. 344, 378.) Even if Chrysler had directed Ed Burke to make
the change, the record would still not show that Chrysler re-
quired him to implement the change immediately, or in any
way prevented him from waiting to make the change until after
he had given the Union notice and an opportunity to bargain.
Furthermore, assuming for purposes of discussion that Chrysler
directed Ed Burke to cancel the franchise for Dodge of Naper-
ville that would not mean the Respondent had to close that
dealership; according to Ed Burke’s testimony he could use a
dealership to sell and service used cars even if that dealership
had no new car franchise.8
On June 20—the day after receiving final approval from
Chrysler to substitute cancellation of the Naperville franchise
for cancellation of the Lisle franchises—the Respondent noti-
fied the unit employees that its Naperville facility was being
closed effective immediately and that it would offer employ-
ment to as many of them as possible at its Lisle facility. Sub-

that Chrysler identified Dodge of Naperville as the surviving corporate
entity in the documents signed on June 17 and 19. However, on June
23, the Respondent asked Chrysler to modify and re-execute those
documents to identify Burke Automotive rather than Dodge of Naper-
ville as the surviving corporate entity. Chrysler agreed, and the Re-
spondent executed the altered paperwork on July 6, 2009. Ed Burke
suggested that this was necessary because Burke Automotive was li-
censed by the State of Illinois to sell both Jeep vehicles and Dodge
vehicles at the Lisle location, but Dodge of Naperville was only li-
censed to sell Dodge vehicles at the Naperville location. However,
since the arrangement with Chrysler called for the Respondent to move
the entire operation to the Naperville location in 17 months, it would
appear that Ed Burke would be required to obtain a license to sell Jeep
vehicles at the Naperville location in any event. Ed Burke conceded
that the State license for a particular dealership location could be
amended to authorize the sale of an additional vehicle line. I do not
find it necessary to reach a determination on the question of whether
the Respondent’s decision to use Burke Automotive, rather than the
unionized Dodge of Naperville, as the surviving corporate entity was
motivated by unlawful concerns.
8 The record does not indicate that renovations which Chrysler was
requiring at the Naperville location could not be made while used car
sales and service continued there.
sequently, the Respondent offered employment at the Lisle
facility to all six of the mechanics from the Naperville Unit, but
told them they would no longer be represented by the Union
and would not receive the wages and benefits provided under
the Union contract. Instead, the Naperville unit mechanics
would be working under the less favorable terms and conditions
of employment that the Respondent was providing to the 14
non-unit mechanics already present as the Lisle facility. Two
of the bargaining unit mechanics—Robert Adams and Mike
Marjanovich—declined to accept employment at the Lisle facil-
ity on the terms that the Respondent was offering. Adams had
been working for Dodge of Naperville in May 2004 and has
been a union member for 24 years. Marjanovich began work-
ing at the Naperville facility in 1999, when it was under differ-
ent ownership, and became a union member at that time.
B. Interrelation of Burke Automotive and
Dodge of Naperville
One of the points of contention between the parties involves
the question of whether Burke Automotive in Lisle and its
wholly owned subsidiary, Dodge of Naperville, are a single
employer for purposes of the Act. Single-employer status is
alleged by the General Counsel and denied by both Burke Au-
tomotive and Dodge of Naperville. As discussed above, Burke
Automotive and Dodge of Naperville are in the same busi-
ness—selling and servicing Chrysler-manufactured vehicles—
and both are owned by Ed Burke.9 In addition, the two corpo-
rate entities have the same two corporate officers (Ed Burke,
president and Pennie Squires, secretary)10 the same general
manager (Sam Guzzino), the same controller (Pennie Squires),
and, prior to the closure of the Naperville facility, the same
parts manager (Chris Belinski).
In addition, Ray Rossi, who oversaw building maintenance
and personnel matters at the Lisle facility, also oversaw build-
ing maintenance at the Naperville facility and on occasion be-
came involved in personnel matters there. Rossi was among
those officials who helped train the employees at Dodge of
Naperville when Ed Burke purchased that facility in 2003.
Rossi testified that his role in the training was to make sure that
the Naperville facility and the Lisle facility “should be married
. . . everything the same.” Both Guzzino and Rossi were pre-
sent at the Naperville facility on June 20, 2009, to notify em-
ployees that the location was being closed and to help arrange
to bring vehicles from that location to the Lisle facility. In
addition, when a unit employee complained that the Respond-
ent had diluted the earning opportunities for existing mechanics
at the Naperville facility by hiring new mechanics, Rossi came
to the Naperville location to meet with the employee about his
complaint. The employee asked Rossi to “get rid of the guys
you just hired,” and the two newly hired mechanics were sepa-
rated from the Naperville facility later that week.

9 As discussed above, Dodge of Naperville is wholly owned by
Burke Automotive, and Burke Automotive (including Dodge of Naper-
ville), is wholly owned by Ed Burke. As of the time of the trial in this
matter, neither corporate entity had been dissolved or formally deac-
tivated.
10 These are the only corporate officers for the two entities.
NAPERVILLE JEEP/DODGE 2263
On the other hand, until June 2009, the Naperville facility
had its own service manager, Russell Rochacz, who exercised
day-to-day supervisory authority there, while Rossi was the
service director at the Lisle facility and supervised the mechan-
ics there. The two facilities had separate employee handbooks
and, prior to June 2009, mechanics from one facility were not
sent to work at the other. Each location had its own sales man-
agers.
In addition to sharing management personnel, Burke Auto-
motive in Lisle and Dodge of Naperville shared an accounting
office. The accounting office was located at the Lisle facility,
but was responsible for the accounting and payroll functions of
both facilities. The same three officials—Ed Burke, Guzzino,
and Squires—were authorized to sign paychecks for employees
at both facilities. For purposes of reporting employee compen-
sation to the Internal Revenue Service, the Respondent listed
Burke Automotive as the employer of employees at both Burke
Automotive in Lisle and Dodge of Naperville, and used the
same federal employer number for both. Burke Automotive
and Dodge of Naperville also used the same state employer
identification number for state payroll tax purposes. The vaca-
tion requests made by employees of both the Lisle facility and
the Naperville facility came to Guzzino’s desk for his approval
and then went to the shared accounting office at the Lisle loca-
tion. On the other hand, Ed Burke maintained separate bank
accounts for Burke Automotive and Dodge of Naperville and
payroll checks for the two locations were drawn on separate
accounts. Both locations were individually licensed by the
State of Illinois and each had its own state sales tax identifica-
tion number, and, until June 9, 2009, a unique dealer code as-
signed by Chrysler.
The record also shows that Burke Automotive and Dodge of
Naperville shared facilities to an extent. This sharing certainly
extended to the furniture, equipment, and office space used for
accounting and payroll functions since there is no dispute that a
single accounting department, located at the Lisle facility, per-
formed those functions for both entities. It is also fair, based on
the record here, to infer that Ed Burke, Squires, Guzzino, Rossi,
and Belinski—all of whom had duties at both Burke Automo-
tive in Lisle and Dodge of Naperville—would sometimes use
furniture, phones, and other equipment at the Lisle store while
addressing matters relating to the Naperville location. There
was no testimony or suggestion that while these individuals
were physically present at the Lisle facility they avoided all
work activities relating to Dodge of Naperville, and it is facially
improbable that they would. Indeed, the record shows that
Squires, who was controller and corporate secretary for both
the Lisle facility and the Dodge of Naperville facility, was
physically present at the Lisle facility, not at the Naperville
facility, while working.
The record shows that Ed Burke would often make
sales/purchases between Burke Automotive in Lisle and Dodge
of Naperville. The sales between Burke Automotive and
Dodge of Naperville were made, as Ed Burke put it, in order to
“balance inventories” between the two facilities. He testified:
“[W]e would sell cars back and forth to balance inventories
amongst Dodge. If the one store was heavy on Journeys but
light on Caravans and the other store was vice versa, heavy on
Caravans and light Journeys, I would sell Journeys to the one
store and Caravans back to the other store.” (Tr. 349.)
At about the time of the alleged violations, Ed Burke began
to drop any pretense of treating the two facilities as independ-
ent enterprises. Most notably, he convinced Chrysler to let him
sacrifice the franchise associated with Dodge of Naperville
instead of the franchises associated with the Lisle location.
That action was clearly not in the interests of Dodge of Naper-
ville as an independent entity, but was, Ed Burke decided, in
the interests of the overall business enterprise. Prior to that—
during the period when Burke Automotive in Lisle was stripped
of its franchises—Ed Burke continued to have nonunit mechan-
ics at Burke Automotive in Lisle perform Chrysler warranty
repairs by recording those repairs as having been made by the
Naperville dealership. Once Ed Burke succeeded in obtaining
permission to surrender the Naperville franchise in exchange
for the Lisle franchises, he assigned all of Dodge of Naper-
ville’s accounts receivable to Burke Automotive, even though
Dodge of Naperville was not dissolved as a corporate entity or
formally deactivated. In addition, he began using the Dodge of
Naperville dealer code for the Burke Automotive facility in
Lisle, and sold Dodge of Naperville’s remaining inventory to
the public through Burke Automotive. (Tr. 99–100, 114.) As
required by Chrysler, Ed Burke agreed that after 17 months he
would move his surviving Chrysler franchises from the location
in Lisle to the location in Naperville after making renovations
to the facility there.
The evidence also shows that the Respondent communicated
with the public in ways that presented the Lisle facility and the
Naperville facility as parts of the same business enterprise. For
example, the Respondent’s advertisements for both facilities
carried not only the individual store’s corporate logo, but also,
next to that logo, the words “Burke Automotive Group.” When
the Respondent closed the Naperville facility, it posted a sign at
that facility informing the public that “WE HAVE MOVED”
and giving the address of the Lisle facility. In addition, the
Respondent posted a sign there stating that it was “OPENING
FALL 2010,” and listing contact information for the Lisle store.
C. Respondent Denies the Unit Mechanics Continued
Employment at the Naperville Location and Offers
Them Nonunion Work at the Lisle Location
While the unit mechanics were working at the Naperville lo-
cation, and the Respondent was complying with the collective-
bargaining agreement, the unit members’ benefits included a
health plan with medical, dental, and vision coverage, and a
pension plan. Pursuant to the contract, the Respondent did not
require the unit mechanics to make any contribution towards
the Respondent’s costs for either of these plans. In addition,
under the union contract, the unit mechanics were guaranteed a
minimum of 34-paid hours per week at the hourly rate of
$29.50, provided they were present at the Naperville dealership
at least 40 hours that week. This minimum hours guarantee
was significant because the mechanics were not paid based on
how many hours they were present, but based on how many
hours they “booked”—that is, on the number of hours worth of
work they were assigned and completed during a week. If not
for the minimum hours guarantee, during weeks when there
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2264
were not enough assignments to keep all the mechanics busy,
mechanics could find themselves accumulating few paid hours,
even if they were physically present at work for 40 hours or
more and completed all their assignments promptly.11
On Saturday, June 20, 2009, when the unit mechanics ar-
rived for work at the Naperville facility, Ed Burke, Guzzino,
and Rossi were present, and informed the mechanics that the
facility was closing and that the mechanics had to remove their
toolboxes the following Monday. Ed Burke told one or more of
the unit mechanics that Chrysler was requiring him to build a
new facility at the Naperville site, and that he “was moving
everything down” to the Lisle facility. The unit mechanics
could, he said, “come down and put in an application and he
would take on as many” of the unit mechanics “as he could” at
the Lisle facility. Adams, an alleged discriminatee, was one of
the unit mechanics who appeared for work at the Naperville
facility on June 20, and spoke with Burke. Marjanovich, the
other alleged discriminatee, was not scheduled to work on June
20, but that morning Rossi contacted him by phone and stated
that the Naperville facility was closed and that he should come
the following Monday to retrieve his toolbox and pick up his
last paycheck.12 Similarly, Lein, who was also not scheduled to

11 The nonunit mechanics at the Lisle facility had no such minimum
guarantee. Thus their compensation from the Respondent could fall
considerably below 34 hours per week during periods when there was a
shortage of work. Rossi testified that “a lot” of the Lisle mechanics
resorted to taking “side jobs” to augment their employment with the
Respondent. Tr. 321.
12 I credit Marjanovich’s testimony regarding a call from Rossi on
June 20, Tr. 206–207, over Rossi’s testimony that he did not call any of
the unit mechanics, Tr. 306. Marjanovich testified with certainty and
specificity regarding the phone call with Rossi, and the subject matter
of that phone call. His description of what he was told during that call
was consistent with the testimony of the Respondent’s own witnesses
regarding what they were telling the mechanics on June 20. Marja-
novich testified matter-of-factly and did not appear inclined to embel-
lish his account to favor the General Counsel’s case.
I found Rossi a less confident witness on the question of a phone call
to Marjanovich, and a less than fully credible witness in general. Rossi
denied making the phone call, but conceded that he had so many con-
tacts with mechanics that he could not recall every time he talked to the
Naperville mechanics or what he said when they came to work at Lisle.
Tr. 319. Moreover, his testimony that he had not called any of the
mechanics that day is contradicted not only by Marjanovich, but also by
Lein, a current employee who also testified that he received a call from
Rossi that day. In my view, Rossi repeatedly strained to deny facts
favorable to the General Counsel. For example, on direct examination,
he denied that he had previously seen either of the two June 23, 2009
correspondences sent to him by the Union—one in which the Union
requested bargaining, and another in which it requested information.
Tr. 308–309. However, upon further questioning Rossi conceded that
he “might have . . . seen” the letter requesting bargaining, and was not
sure if he had seen the letter requesting information, Tr. 315–316. In its
brief, the Respondent concedes that Rossi received the June 23 request
for information. R. Br. at p. 7. Rossi embellished his answers in some
instances in order to present the Respondent’s actions in the most fa-
vorable light. For example, when asked whether Ed Burke had dis-
cussed the application form, benefits, and the handbook at a June 26
meeting with the unit mechanics, Rossi responded “I’m not sure if he
said anything about the handbook, but he did offer everyone a job very
politely.” Tr. 320. In other instances, Rossi became antagonistic in
work on June 20, received a call from Rossi that day. Rossi
stated that Lein had to remove his tools from the Naperville
facility by 2 p.m. the following Monday, that he could apply for
a job at the Lisle facility, and that the Lisle facility would be a
nonunion shop.13 Prior to these communications to the unit
mechanics, the Respondent had not given the Union notice or
an opportunity to bargain regarding the closing of the Naper-
ville facility, the change in the unit employees’ work location,
or the effects of those actions.
On June 22, all of the unit mechanics came to the Naperville
facility where they loaded their toolboxes onto a rental truck
and removed them from that location.14 The unit mechanics
had not yet been told that they could continue working for the
Respondent at the Lisle facility, and the mechanics did not
bring their toolboxes there that day. Unit members Adams,
Marjanovich, and Zeka went to the Lisle facility at about 5 p.m.
on June 22 to obtain their paychecks. While they were there,
Rossi gave the unit mechanics applications, benefits forms, and,
in a least one case, an employment-at-will form, and asked the
mechanics to complete the forms and return them to the Re-
spondent. Rossi also provided the unit mechanics with the
employee handbook used at the Lisle facility. When asked
about the terms of employment, Rossi told the unit mechanics
they would be coming to the Lisle facility as “new hires,”
would “probably” have to work “weekends and evenings,” and
that there would be no union benefits or 34-hour pay guarantee.
Prior to this time, the Respondent had not given the Union no-
tice or an opportunity to bargain regarding changes in the terms
and conditions of employment being offered to the unit em-
ployees.
In letters dated June 22, 2009, signed by Guzzino, and sent
to unit mechanics by overnight mail, the Respondent stated:

response to questions. For example, when I asked him in what capacity
he was acting when he came to the Naperville store on June 20 and
informed unit mechanics that the store was closing (since he was ser-
vice manager at the Lisle location, not the Naperville location) his
demeanor became surly and he responded, “I don’t think they would
get a porter to do it, you know. I’m a service manager—common
sense.” Tr. 322.
13 Based on his demeanor and the record as a whole, I credit Lein’s
testimony about this conversation, Tr. 247–248, over Rossi’s denial that
he called Lein or any of the other unit mechanics, Tr. 306. As in the
case of the phone call to Marjanovich, Lein’s account of what was said
by Rossi during this conversation was consistent with the testimony of
the Respondent’s other witnesses about what they were telling the unit
employees. In addition, for the reasons discussed previously, I found
Rossi less than fully credible based on his demeanor and testimony.
While my credibility determination regarding Lein’s testimony is made
independently of the fact that he is a current employee, I nevertheless
note that crediting him is consistent with the Board’s view that the
testimony of a current employee that is adverse to his employer is “giv-
en at considerable risk of economic reprisal, including loss of employ-
ment . . . and for this reason not likely to be false.” Shop-Rite Super-
market, 231 NLRB 500, 505 fn. 22 (1977). See also Jewish Home for
the Elderly of Fairfield County, 343 NLRB 1069 fn. 2 (2004), enfd. 174
Fed. Appx. 631 (2d Cir. 2006), and Flexsteel Industries, 316 NLRB
745 (1995), enfd. mem. 83 F.3d 419 (5th Cir. 1996).
14 The toolboxes used by the mechanics are large—for example Ad-
ams’ toolbox, which was not the largest, was approximately 5-feet tall,
4-feet wide, and 2-1/2-feet deep, and about 1000 pounds in weight.
NAPERVILLE JEEP/DODGE 2265

Please show up for work immediately at our facility located at
3300 Ogden Avenue, Lisle, Illinois 60532. We expect your
prompt arrival. Should you not come to work we will assume
that you have no interest in a job at our dealership.

On June 23, after receiving this letter, a number of the unit
mechanics met with union officials Dennis Jawor (directing
business representative) and Thomas Gregg (business repre-
sentative) to discuss the turn of events at the Naperville facility.
The union officials prepared letters for Adams and other unit
mechanics to deliver to company officials the next day. These
letters, signed by Jawor and addressed to Rossi’s attention,
made a number of requests for information and also took the
position that the unit mechanics were still employees of the
Naperville facility and, therefore, were still covered by the
collective-bargaining agreement. The letter reads as follows:

I am in receipt of your letter dated June 22, 2009, in which
you advised our Local 701 members to immediately report to
work at your temporary facility located at 3300 Ogden Ave-
nue[, Lisle, Illinois].

Due to the fact that yesterday when the technicians tried to re-
port to work they were informed by Ray Rossi that they had
to fill out applications, they would be new employees and
would receive no benefits, I am requesting the following in-
formation in writing before I advise my members to return to
work.

1. Will the technicians from Naperville Dodge be
working under the current collective bargaining agreement
dated August 1, 2005 through July 31, 2009.
2. Will the company continue to contribute into the
Local 701 Welfare and Pensions fund at the current con-
tribution rate.
3. Will the Technicians be paid in accordance with the
current collective bargaining agreement.
4. Will the Technicians be paid base pay in accord-
ance with the collective bargaining agreement.
5. Will each technician have a hoist as required in the
collective bargaining agreement.

Be advised that I have instructed the Technicians not to fill
out any paperwork, due to the fact that they are working for
the same employer under the same collective bargaining
agreement and their same dealer code. The only difference is
they are working in a temporary facility.

Adams reported to work on the morning of June 24, and deliv-
ered this letter to Rossi at that time.
On June 23, Jawor also sent a letter by facsimile to Rossi’s
attention at the Respondent’s Lisle facility. That letter repeated
some of the same points made in the letter that Adams had
delivered to Rossi, and asked to meet and bargain “as soon as
possible” over issues arising because the “bargaining unit” had
“expand[ed]” The letter stated in relevant part:

It is Local 701’s position that:

1. The technicians from Naperville Dodge will be
working under the current collective bargaining agreement
dated August 1, 2005 through July 31, 2009.
2. The company must continue to contribute into the
Local 701 Welfare and Pension Funds at the current con-
tribution rate.
3. The technicians must be paid in accordance with
the current collective bargaining agreement.
4. The technicians must be paid base pay in accord-
ance with the collective bargaining agreement.
5. Each technician must have a hoist as required by
the collective bargaining agreement.

There are a number of other issues that need to be discussed
when the bargaining unit expands as it has in this situation so
I suggest that we meet to bargain over such matters. Please
let me know when we can meet. I believe the meeting should
take place as soon as possible.

On June 24, 2009, Jawor received a response from counsel for
the Respondent. The Respondent’s letter referenced Jawor’s
June 23 communication and stated, inter alia: “It is the position
of my client that Local 701 does not represent a majority of its
technicians. I would suggest that we meet at your offices at
10:00 am this Friday, June 26, to discuss these matters.”
During the workweek that began on June 22, many, if not all,
of the unit mechanics from the Naperville facility worked at the
Lisle facility. The Naperville mechanics joined the 14 nonunit
mechanics who were already working at the Lisle location.
Adams and Marjanovich presented themselves for work at the
Lisle store on Wednesday, June 24. Both worked at the Lisle
facility on June 24, 25, and 26, without being required to com-
plete an application or other paperwork for the Lisle facility.
Although terms for their continued employment had been in-
formally alluded to earlier, they were not told what those terms
would actually be until June 26. Over the course of the 3-day
period when Adams worked at the Lisle store that week, Adams
accumulated a total of 15 “booked hours” of work for which he
could be paid. Over the course of the same 3-day period, Mar-
janovich accumulated a total of 12.1 “booked hours” for his
work at the Lisle location.
On Friday, June 26, Ed Burke, Guzzino, and Rossi met with
mechanics who had come to the Lisle facility from the Naper-
ville facility. Ed Burke informed the mechanics that they were
all being offered employment at the Lisle facility. He told the
Naperville mechanics that the Lisle facility “was a non-union
store,” would “never be a union store,” and that if the mechan-
ics “ever went out on strike it would mean that [they] quit and
would not be able to collect unemployment.”15
Regarding the terms and conditions of employment, Ed
Burke told the unit mechanics that they would no longer re-
ceive what they had at the Naperville facility under the collec-
tive-bargaining agreement. They would be paid at the same
hourly rate as at the Naperville facility ($29.25 per hour), but
there would be no minimum hours guarantee. Rather, like the
nonunit mechanics at Lisle, the unit mechanics could now earn

15 I credit Lein’s testimony that Ed Burke made these statements. I
considered the fact that Marjanovich, the other witness for the General
Counsel who testified about the June 26 meeting, did not include these
statements in his account. However, Marjanovich arrived late and
missed part of the presentation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2266
considerably less than 34 hours of pay a week if there were not
enough assignments to keep them busy. He stated that the Re-
spondent would not continue the unit mechanics’ no-employee-
contribution health insurance, but that the mechanics would be
permitted to participate in the health plan in place at the Lisle
store. The premiums for this health insurance would be entirely
at the employee’s expense. For family coverage with medical,
dental, and vision insurance, the employee would have to pay
premiums of between $175 and $200 every week. In addition,
the unit employees would no longer be covered by a pension
plan. Instead they would be able to make contributions to a
401(k) plan to which the Respondent would make matching
contributions of no more than $10 a week. Ed Burke told the
Naperville mechanics that, contrary to what Rossi had earlier
reported, they would not be treated as new hires. Instead, they
would be credited for service at the Naperville facility back to
the date when the Respondent assumed control of that dealer-
ship in 2003. Any seniority accrued prior to that time would be
forfeited.16 Ed Burke further stated that if the employees chose
to quit instead of accepting employment under the terms being
offered, he would not pay them unemployment compensation.
Ed Burke testified that at the meeting he wanted to make clear
to the Naperville mechanics that the reason for the June 22
letter was that the Respondent needed to fill positions at the
Lisle facility and could not afford to hold the employment of-
fers open for “6 weeks.”
Adams was not present for the June 26 meeting, but after-
wards Guzzino and Rossi met with him. Guzzino and Rossi
discussed the terms of employment that Ed Burke had de-
scribed at the meeting and told Adams that the Respondent was
not going to recognize the Union at the Lisle facility. They also
repeated Ed Burke’s warning that if a mechanic did not accept
employment at the Lisle facility under those terms, the Re-
spondent would view him as having quit and would oppose an
application for unemployment insurance.
The Respondent also met with Jawor on June 26. The Re-
spondent’s attorney told Jawor that the Union no longer had
majority support and that the Respondent was going to with-
draw recognition. Jawor responded that the Union’s represen-
tation of the Naperville mechanics should continue, and that the
Union would attempt to sign up the mechanics who had been
working at the Lisle facility. The Respondent’s attorney stated
that the company was going to pay the former Naperville me-
chanics the same wages and benefits as the mechanics already
working at the Lisle facility. Jawor did not consent to this
change in the unit members’ terms. Later that day, the Re-
spondent’s attorney sent a letter to Jawor by facsimile, which
stated:

Pursuant to our meeting this morning, this letter is to inform
you that due to the relocation of, and merger with Burke Au-
tomotive, recognition of Local 701 at Naperville Dodge is
hereby withdrawn due to lack of majority status.

16 This affected the amount of vacation time employees accrued. For
example, Lein, received 4 weeks of vacation per year while at the Na-
perville facility, but only 2 weeks per year after being relocated to the
Lisle facility.
The Respondent gave the Union no advance notice of the
“merger” and “relocation” action referred to by the Respond-
ent’s counsel in the June 26 communication, and never offered
to negotiate with the Union regarding the effects of that deci-
sion. On July 8, 2009, the Union filed the initial charge, in
which it alleged that the Respondent had “unlawfully with-
drawn recognition from the Union and repudiated the collec-
tive-bargaining agreement.”
After the Respondent told the Naperville mechanics what
their terms and conditions of employment would be at the Lisle
facility, Adams and Marjanovich concluded that they would not
be able to financially afford to work there. Adams and Marja-
novich both testified that this was because under, the new
terms, they would have to pay their own health insurance pre-
miums and would not be guaranteed any minimum number of
paid hours per week. Both men required family coverage,
which the record shows would cost up to $200 each week in
premiums. Moreover, there were, Adams worried, a large
number of mechanics at the Lisle facility, creating the possibil-
ity that there would not be enough work for all of them. As
discussed above, during the 3-day period they were present at
the Lisle store from June 24 to 26, Adams and Marjanovich
accumulated only 15- and 12.1-paid hours respectively. Marja-
novich testified that, between the health insurance premiums
and the rescission of the minimum hours guarantee, he was
concerned that his take-home pay would not be enough to cover
his monthly mortgage payments.
On the morning of Monday, June 29, Adams went to the
Lisle facility and told Rossi that he would not work there under
the terms the Respondent was offering. Rossi responded that
he “liked” Adams and was “sorry that we hadn’t come to an
agreement.” Adams retrieved his tools and left the facility.
Marjanovich also went to the Lisle store on the morning of June
29. He told Rossi that he could not “turn in my application and
accept this employment because it would be too costly for me,
a financial hardship due to the fact that I had just had a new-
born son two months prior and my wife was not working at the
time.” Rossi responded that he was “sorry to see [Marjanovich]
go” and “wished” him “luck.”
Adams and Marjanovich both filed for unemployment com-
pensation, and the Respondent opposed their applications.
D. No Notice to Union
The uncontradicted evidence shows that the Respondent did
not give the Union notice or an opportunity to bargain over
decisions affecting the terms and conditions of employment of
unit employees. After Chrysler Group informed Ed Burke that
he could not retain the franchises for his (nonunion) store in
Lisle, but could retain the franchise for his (unionized) Dodge
of Naperville store, Ed Burke embarked on an effort to con-
vince Chrysler to revive the Lisle franchises—either in addition
to, or instead of, the Naperville franchise. Ed Burke admitted
that he did not give the Union notice or an opportunity to bar-
gain about his ultimately successful effort to keep the Lisle
franchises at the expense of the Naperville franchise. When
Chrysler gave Ed Burke the choice between retaining either the
Naperville franchise or the Lisle franchises, he did not give the
Union notice or an opportunity to bargain before choosing to
NAPERVILLE JEEP/DODGE 2267
sacrifice the Naperville franchise at the location where the unit
employees worked in order to revive the franchises at the loca-
tion in Lisle.
Prior to June 20, when the Respondent informed the unit me-
chanics that it had closed the Naperville facility, the Respond-
ent did not give the Union notice or an opportunity to bargain
regarding that change or its effects. Similarly, the Respondent
did not give the Union notice and an opportunity to bargain
before the June 22 letter directing the unit employees to report
to the Lisle facility or before the June 26 meeting at which it
formally offered the unit mechanics employment at the Lisle
facility and described the changed terms and conditions that it
would provide there. Prior to June 26, when the Respondent
notified the Union that “due to the relocation of, and merger
with Burke Automotive, recognition of [the Union] at Naper-
ville Dodge” was “withdrawn,” the Respondent did not give the
Union notice or an opportunity to bargain over the “relocation”
and “merger” or its effects.
E. Information Request
On July 9, 2009, counsel for the Union transmitted a letter to
counsel for the Respondent requesting certain information.
That request read in relevant part:

[I]t is the Union’s position that Burke has unlawfully repudi-
ated its collective-bargaining agreement with the Union as it
relates to this bargaining unit. There are also numerous pos-
sible contractual violations related to the events surrounding
the relocation of work to the Lisle facilities. Please provide
the following information:

1. All correspondence between Burke and Chrysler (or
any representatives or subsidiaries of Chrysler) related to
the termination of the franchise agreement for Burke d/b/a
Naperville Jeep/Dodge in Lisle, Illinois, dealer code 2358;
and
2. All correspondence between Burke and Chrysler (or
any representatives of subsidiaries of Chrysler) related to
the ongoing franchise agreement for Burke under dealer
code 45120.17

The Respondent did not answer the Union’s information re-
quest until March 4, 2010. At that time it stated that no docu-
ments existed besides those which had accompanied a position
letter that the Respondent submitted to the Regional Office of
the Board on September 8, 2009. The position letter to the
Regional Office made no mention of the Union’s information
request and in no way suggested that the attachments were
responsive to the request, but the cover letter indicates that the
Respondent forwarded a copy of the position letter to the Un-
ion.
F. Complaint Allegations
The complaint alleges that the Respondent violated Section
8(a)(5) and (1): since June 23, 2009, by failing and refusing to

17 Until the events at issue here, the dealer code for the Naperville
franchise was 45120 and for the Lisle franchises was 2358. In June
2009, the Respondent began, with the approval of Chrysler, to use
dealer code 45120 for the Lisle facility.
bargain with the Union concerning the effects of its temporary
relocation of the unit to the Lisle facility; by failing to continue
in effect the terms and conditions of the collective-bargaining
agreement, repudiating that agreement, and withdrawing recog-
nition from the Union during the effective period of the collec-
tive-bargaining agreement without the consent of the Union;
and by failing to provide the Union with information, requested
on July 9, 2009, that is necessary for, and relevant to, the Un-
ion’s duties as collective-bargaining representative. The com-
plaint further alleges that the Respondent violated Section
8(a)(3) and (1) on about June 26, 2009, when it constructively
discharged union mechanics Adams and Marjanovich by re-
quiring them to work without union representation and union
contractual benefits. The complaint also alleges that the Re-
spondent threatened employees in violation of Section 8(a)(1):
on June 20, 2009, when Rossi told employees, by phone, that
they would no longer be unionized upon their temporary trans-
fer to the Lisle facility; on June 22, 2009, when Rossi told em-
ployees that they would no longer have any union benefits after
their temporary transfer to the Lisle facility; on June 26, 2009,
when Rossi threatened employees that they would not be re-
ceiving any union benefits; and, on about June 26, 2009, when
Ed Burke told employees that they would never have a union-
ized store and would be discharged if they ever went on strike.
III. ANALYSIS AND DISCUSSION
A. Single-Employer Question
The complaint alleges, and the General Counsel argues, that
Burke Automotive and Dodge of Naperville are a single em-
ployer, and are jointly and individually liable for the unfair
labor practices alleged. Whether nominally separate entities are
a single employer for purposes of the Act is determined by
considering four factors: (1) functional integration of opera-
tions; (2) centralized control of labor relations; (3) common
management; and (4) common ownership. Radio & Television
Broadcast Technicians Local 1264 v. Broadcast Service of
Mobile, 380 U.S. 255, 256 (1965); Mercy Hospital of Buffalo,
336 NLRB 1282, 1283–1284 (2001). The Board has stated that
none of the four factors is controlling as single-employer status
ultimately depends on all the circumstances of the case. Rich-
mond Convalescent Hospital, 313 NLRB 1247, 1249 (1994).
This inquiry is designed to determine whether the nominally
“separate corporations are not what they appear to be, that in
truth they are but divisions or departments of a single enter-
prise.” NLRB v. Deena Artware, Inc., 361 U.S. 398, 402
(1960); NLRB v. Browning-Ferris Industries, 691 F.2d 1117,
1122 (3d Cir. 1982). “‘Single-employer’ status ultimately de-
pends on all the circumstances of the case and is characterized
as an absence of an ‘arm’s-length relationship found among
unintegrated companies.’” Brown-Ferris, supra. Viewing the
facts of this case through the prism of the relevant factors, I
conclude that Burke Automotive and Dodge of Naperville were
operated by Ed Burke as divisions of a single enterprise rather
than as separate entities with an arm’s-length relationship.
All four of the factors identified by the Board support find-
ing that Burke Automotive and Dodge of Naperville are a sin-
gle employer. The General Counsel has made an extremely
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2268
strong showing of common ownership. The evidence estab-
lishes that Ed Burke is the sole owner of Burke Automotive
Group and, through that entity, the sole owner of Dodge of
Naperville. Not only is 100 percent of ownership common in
the person of Ed Burke, but ownership is through a common
corporate entity.
Regarding common management, the General Counsel also
makes an extremely strong showing. Most of the same individ-
uals hold the same high-level positions at the two entities. Ed
Burke is president of Burke Automotive and also president of
Dodge of Naperville. Squires is corporate secretary for Burke
Automotive and also corporate secretary for Dodge of Naper-
ville. Indeed, the record shows that there are no corporate of-
ficers who are not identical at the two entities. The same indi-
vidual, Guzzino, is the general manager at Burke Automotive
and also the general manager at Dodge of Naperville. During
the period when the Respondent was actively doing business at
both locations, Belinski was the parts manager for both.
Squires, in addition to serving as corporate secretary, is control-
ler for both Burke Automotive and Dodge of Naperville. Rossi
is responsible for overseeing maintenance of the physical plant
at both facilities. Rossi also has personnel responsibilities for
both entities, although those responsibilities are more extensive
at the Lisle facility, where he is service director. Notably, Ed
Burke gave Rossi responsibility for training employees at
Dodge of Naperville when the Respondent purchased it in
2003. Rossi also had personnel responsibilities when the Re-
spondent closed that store in June 2009. In another instance,
Rossi was dispatched to Dodge of Naperville to address a staff-
ing concern raised by one of the unit mechanics.
The record does show some differences in the management
of Burke Automotive and Dodge of Naperville. The service
manager at Dodge of Naperville had day-to-day supervisory
responsibilities there, but no responsibilities at the Lisle store.
In addition, each entity had its own sales managers. Overall,
however, these differences weigh lightly on the scale when
compared to the multiple, and generally higher-level, instances
of common management discussed above. Pathology Institute,
320 NLRB 1050, 1061–1062 (1996) (finding common man-
agement based on commonality at the shareholder/member and
director/trustee level); see also Sakrete of Northern California,
Inc. v. NLRB, 332 F.2d 902, 907 (9th Cir. 1964) (single-
employer finding not precluded where commonality of man-
agement is only at the highest level), cert. denied 379 U.S. 961
(1965).
The evidence presented by the parties regarding centralized
control of labor relations is more mixed, but on balance also
favors finding that Burke Automotive and Dodge of Naperville
are components of a single employer. Rossi conceded that
when he trained employees at Dodge of Naperville, the Re-
spondent’s intention was that both entities “be married . . .
everything the same.” Guzzino, in his capacity as general man-
ager at both Burke Automotive and Dodge of Naperville, has
active control over labor relations at both. For example, he
gives final approval for the vacation leave of both groups of
employees. Guzzino, Ed Burke and Squires have responsibility
for signing the payroll checks of employees at Burke Automo-
tive and for signing the payroll checks of employees at Dodge
of Naperville. Ed Burke sets the terms and conditions of em-
ployment received by mechanics at Burke Automotive and also
signed the collective-bargaining agreement establishing the
terms and conditions of the mechanics at Dodge of Naperville.
The Respondent argues, and the record shows, that the two
entities did not share or exchange mechanics prior to time of
the alleged violations in June 2009. Although that provides
some support for the view that the labor relations were not cen-
tralized, it is not the whole story, and not the most important
part of the story in this instance. During the later time period
when the violations are alleged to have occurred—that is, from
June 2009 forward—the Respondent’s labor relations were
clearly centralized and the Respondent was treating the unit
mechanics as employees of a single employer that included
Dodge of Naperville and Burke Automotive. For example,
shortly after closing the Naperville store, the Respondent told
the unit employees that if they did not immediately report to the
Burke Automotive facility in Lisle they would be considered to
have quit and would be denied unemployment compensation.
This is significant because an employee does not quit a job
when he or she is laid off by a current employer and subse-
quently refuses a new job with a separate employer. Rather, an
employee quits a job when he or she declines to continue em-
ployment with the same employer. Not only did the Respond-
ent make these statements treating the unit mechanics as em-
ployees of both the Naperville facility and the Lisle facility, but
it acted on those statements by challenging the unemployment
compensation claims of Adams and Marjanovich after they
declined to work at the Lisle facility under the terms offered.
In addition, the Respondent had the Naperville mechanics begin
performing job duties at the Burke Automotive location in Lisle
before those employees had been informed of their actual terms
of employment at the Lisle facility or been formally offered
continued employment there. Indeed the Respondent had unit
mechanics from Naperville begin working at the Lisle facility
without first obtaining applications from those mechanics. This
behavior is generally more consistent with the way an employer
relocates employees within its divisions, rather than with the
way an employer hires from outside the company.
When, on June 26, the Respondent set forth the terms of em-
ployment for the unit mechanics relocated to the Lisle location,
it credited them with seniority for their years of service at the
Naperville store back to the date when the Respondent acquired
that facility in 2003. The fact that the Respondent was credit-
ing employees at Burke Automotive with years working for
Dodge of Naperville is another indicator that it was treating the
two facilities as a single employer with a unified labor relations
system. In my view, the Respondent’s actions from June 2009
forward suggest that labor relations for the two nominally sepa-
rate entities had always been very centralized. However, even if
one views these actions as a departure from the way the Re-
spondent handled labor relations prior to June, the later period
is the more significant one for purposes of the analysis because
it was during that later period when the violations are alleged to
have occurred.
In reaching the conclusion that the evidence regarding labor
relations at Burke Automotive and Dodge of Naperville sup-
ports finding that the two were a single employer, I considered
NAPERVILLE JEEP/DODGE 2269
the evidence that each facility has its own employee handbook.
However, the situation where terms and conditions of employ-
ment vary between the unionized and non-unionized compo-
nents of a single employer is more the rule than the exception,
see, e.g., Illinois-American Water Co., 296 NLRB 715, 720
(1989), enfd. 933 F.2d 1368 (7th Cir. 1991), and that reality
does not suggest, in this case, that such components were sepa-
rate, arm’s-length entities for purposes of the Act.
Lastly, the level of functional integration between Burke Au-
tomotive and Dodge of Naperville is consistent with finding
them to be a single employer for purposes of the Act. As dis-
cussed above, both were wholly owned by Ed Burke, had large-
ly identical management teams, and engaged in precisely the
same business on the same road in neighboring communities.
One telling piece of evidence regarding the functional integra-
tion of these two entities was given by Ed Burke under ques-
tioning by his own attorney. Ed Burke testified that he made
sales of vehicles between Burke Automotive and Dodge of
Naperville in order to “balance inventories” between the two
locations. The fact that Ed Burke was attempting to balance
inventories between the two entities, rather than making arms
length’s transactions in which each entity considered only its
individual interests, strongly suggests that Burke Automotive
and Dodge of Naperville were operating as a single-integrated
business enterprise. See Emsing’s Supermarket, 284 NLRB
302, 304 (1987) (finding of single-employer status is supported
by propensity to operate both companies “in such a manner that
the exigencies of one would be met by the other” showing that
relationship was not arm’s length), enfd. 872 F.2d 1279 (7th
Cir. 1989). Similarly, after Chrysler decided to cancel the
Burke Automotive franchises, Ed Burke persuaded Chrysler to
permit him to retain those franchises and, instead, sacrifice the
Naperville Dodge franchise—a move that may have been in the
interests of Ed Burke’s overall business enterprise, but cannot
be seen as being in the interests of Dodge of Naperville as an
individual entity.
A high level of functional integration is also evidenced by
the two entities’ sharing of facilities, equipment, and personnel.
Burke Automotive and Dodge of Naperville had a single ac-
counting department, which was housed at the Burke Automo-
tive facility in Lisle. At this centralized accounting office the
two entities shared office space, equipment, furniture, and ac-
counting personnel. Western Union, 224 NLRB 274, 277
(1976) (in determining single-employer status, Board considers
whether there are, inter alia, combined accounting records,
bank accounts, telephone numbers, offices). In addition, as
discussed above, the two entities shared numerous corporate
and management officials. This also meant that the two entities
shared facilities and equipment because an official would
sometimes perform work relating to Dodge of Naperville while
physically present at the Burke Automotive facility in Lisle.
In addition to sharing facilities, equipment, and personnel,
the two facilities shared the nominally separate franchise identi-
ties assigned to them by Chrysler. During the period from June
9 to 19, when Burke Automotive in Lisle temporarily lacked a
franchise, the Respondent had the nonunit mechanics at the
Lisle facility continue making dealer warranty repairs by re-
porting the repairs as having been made by Dodge of Naper-
ville. Then, when Ed Burke succeeded in convincing Chrysler
to allow him to surrender the Dodge of Naperville franchise in
exchange for reviving of the Burke Automotive franchises in
Lisle, Ed Burke used Burke Automotive to sell Dodge of Na-
perville’s remaining inventory to the public, and assigned
Dodge of Naperville’s accounts receivable to Burke Automo-
tive.
Around the time of the alleged violations, the already signif-
icant sharing of facilities and equipment increased greatly. On
June 20, Ed Burke announced that he was “moving everything”
from Dodge of Naperville to the Burke Automotive store in
Lisle.18 Moreover, Ed Burke promised Chrysler that in 17
months he would renovate the Dodge of Naperville facility and
move his Burke Automotive operation back to the Naperville
location from the Lisle facility. The Respondent did not show
that before Ed Burke committed to ultimately moving the sur-
viving Burke Automotive operation to the Dodge of Naperville
location, the two entities executed lease or sale agreements or
had any arm’s length dealings at all regarding Burke Automo-
tive’s use of the Dodge of Naperville location. It is clear that
during this period the Respondent was engaging in a global
sharing of facilities and equipment between Burke Automotive
and Dodge of Naperville. The two entities were not operating
at “arm’s length” as separate entities; rather, Ed Burke was
simply drawing whatever resources he could from either entity
in service of the best interests of a single-integrated business
enterprise. See Emsing’s Supermarket, 284 NLRB at 304 (that
fact that two companies are being operated “in such a manner
that the exigencies of one would be met by the other” supports
finding single employer status).
In communications to the public, the Respondent presented
Burke Automotive and Dodge of Naperville as parts of a sin-
gle-integrated enterprise. The newspaper advertisements that
the Respondent ran for the Lisle facility and the Naperville
facility identified both dealerships as part of Burke Automotive.
In June 2009, when the Respondent suspended operations at the
Dodge of Naperville location, the notice to consumers that it
placed at the facility did not state that Dodge of Naperville was
“closed,” but rather that it had “moved” to the location of
Burke Automotive in Lisle. The fact that the Respondent held
itself out to the public as a single-integrated business enterprise
further supports finding that it was a single employer within the
meaning of the Act. Southern Interiors, Inc., 319 NLRB 379

18 The suggestion that Ed Burke was combining the Dodge of Na-
perville operation with the Lisle operation, rather than simply closing
the Naperville operation, is reinforced by Ed Burke’s testimony that, as
of June 22, he needed to fill positions at the Lisle facility and therefore
wanted the unit mechanics to promptly report for work there. If the
Dodge of Naperville operation had been eliminated, it would not ex-
plain the rush to get the unit mechanics started working at the Lisle
facility. However, if the Naperville facility’s operation and workload
were being relocated to the Burke Automotive facility in Lisle, it would
explain why Ed Burke felt he needed to quickly increase the comple-
ment of mechanics at the Lisle facility. The view that the Dodge of
Naperville operation was being merged, rather than eliminated, is also
reinforced by the June 26 letter to the Union in which the Respondent
itself referenced the “relocation” and the “merger” of Dodge of Naper-
ville with Burke Automotive in Lisle.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2270
(1995) (single employer status found based, inter alia, on the
fact that the entities held themselves out to the public as parts
of a single integrated business enterprise), enfd. mem. 107 F.3d
12 (6th Cir. 1997).19
The record does show that there are some respects in which
the dealerships have not been integrated. For example, they use
separate bank accounts and lines of credit. However, to the
extent that this evidence provides some support for viewing the
two dealerships as functionally separate, that evidence is not
only out weighed, but also undercut, by the ways in which the
dealerships are functionally integrated. For example, the sig-
nificance of Ed Burke’s maintenance of separate bank accounts
for the dealerships is reduced where, as here, the level of func-
tional integration is such that one dealership was used to sell
the other’s inventory and accept assignment of the other’s ac-
counts receivable.
To summarize, consideration of the relevant factors reveals
that the relationship between Burke Automotive and Dodge of
Naperville is characterized by the “absence of an ‘arm’s-length
relationship found among unintegrated companies.’” Brown-
Ferris, supra. I conclude that the two entities are a single em-
ployer for purposes of the Act.
B. Alleged Violations of Section 8(a)(5)
1. Withdrawal of recognition
The General Counsel argues that the Respondent acted in vi-
olation of its bargaining obligations under Section 8(a)(5) and
(1) of the Act by withdrawing recognition when it relocated the
unit employees from the Naperville facility to the Lisle facility.
The record shows that when the Respondent relocated the six
unit mechanics there were already 14 nonunit mechanics work-
ing at the Lisle location. On June 24, 2009, the Respondent
notified Jawor of management’s position that the Union did
“not represent a majority of its technicians.” Subsequently, on
June 26, 2009, the Respondent informed the Union in writing
that the company was withdrawing recognition “due to lack of
majority status” resulting from the “relocation” and “merger”
of Dodge of Naperville and Burke Automotive. This withdraw-
al of recognition occurred during the effective period of the
collective-bargaining agreement, which was not set to expire
until July 31, 2009.
The Respondent contends that the withdrawal of recognition
was lawful because the unit mechanics were accreted into the
larger nonunion work force at the Lisle facility and were no
longer an appropriate unit for bargaining. The General Counsel
counters that the unit retained a separate identity even after the
relocation, and therefore was not accreted into the nonunion
work force. For the reasons discussed below, I conclude that at
the time the Respondent withdrew recognition from the Union,
the unit continued to be an appropriate bargaining unit with a
distinct identity and that the withdrawal of recognition violated
the Act.
The Board has ruled that where there is a lengthy history of
collective bargaining for a unit, an employer must continue to

19 In addition to holding itself out the public as a single employer,
the Respondent did so in its June 26 letter to the Union—stating that it
had “merged” Dodge of Naperville and Burke Automotive.
recognize the Union even when operational changes result in
unit employees doing the same type of work on the same
equipment as nonunit employees within a broader facility or
group. Radio Station KOMO-AM, 324 NLRB 256, 262–263
(1997); Serramonte Oldsmobile, 318 NLRB 80, 104 (1995),
enfd. in relevant part 86 F.3d 227 (D.C. Cir. 1996); Children’s
Hospital, 312 NLRB 920, 929 (1993), enfd. sub nom. Califor-
nia Pacific Medical Center v. NLRB, 87 F.3d 304 (9th Cir.
1996); see also Trident Seafoods, Inc. v. NLRB, 101 F.3d 111,
118 (D.C. Cir. 1996) (“[T]he Board places a heavy evidentiary
burden on a party attempting to show that historical units are no
longer appropriate.”); Armco, Inc. v. NLRB, 832 F.2d 357, 363
(6th Cir. 1987) (“long bargaining history . . . alone suggests the
appropriateness of a separate bargaining unit”). Absent “com-
pelling circumstances,” a history of meaningful bargaining is
sufficient to establish the continued appropriateness of a sepa-
rate unit, even if other factors support a contrary result. See
Radio Station KOMO-AM, 324 NLRB at 262. The bargaining
unit at issue in this case is a longstanding one, having been
certified in 1989, approximately 20 years before the Respond-
ent withdrew recognition in June 2009. It has been covered by
multiple, successive, collective-bargaining agreements, and the
last such agreement had not reached its expiration date at the
time the Respondent withdrew recognition. After the tempo-
rary relocation the unit employees continued to perform the
same type of work for most of the same managers as they had
before the relocation. Every member of the established unit
was offered employment at the Lisle facility. In this case, the
Respondent has failed to identify, much less demonstrate the
existence of, any “compelling circumstances,” that would per-
mit withdrawal of recognition based on the temporary reloca-
tion of the Naperville unit. Indeed, given that under the Re-
spondent’s contract with Chrysler the relocation of the unit
employees was to be short-lived, it is hard to imagine how cir-
cumstances justifying dissolution of the established bargaining
unit could be found here based on the relocation.
The conclusion that the longstanding Naperville bargaining
unit has retained its identity is further supported by the unique
terms and conditions of employment to which the unit mechan-
ics are entitled under the collective-bargaining agreement. See
Mirage Casino-Hotel, 338 NLRB 529, 532 (2002) (differences
in wages and employment benefits is a factor which can sup-
port finding that employees share a community of interest);
Super K Mart Center, 323 NLRB 582, 588 (1997) (same); Sky-
line Distributors, 319 NLRB 270, 270 fn. 2, and 278 (1995),
enfd in part and remanded 99 F.3d 403 (D.C. Cir. 1996) (same);
Serramonte Oldsmobile, 318 NLRB at 80 (same). As discussed
previously, under the collective-bargaining agreement a number
of the most important terms and conditions of employment for
the unit employees were vastly different than, and much supe-
rior to, those applicable to the Respondent’s nonunit mechan-
ics. The conclusion that the unit’s unique terms of employment
support finding that the unit retained its identity is not affected
by the fact that the Respondent unilaterally repudiated the col-
lective-bargaining agreement and imposed nonunit wages and
benefits on the unit employees at approximately the same time
as it withdrew recognition. As found below, the contract repu-
diation, and unilateral change in wages and benefits were them-
NAPERVILLE JEEP/DODGE 2271
selves violative of Section 8(a)(5) of the Act. Such unlawful
changes by an employer are not considered when determining
whether an established bargaining unit retains its distinct identi-
ty since giving weight to such changes would reward the em-
ployer for its unlawful conduct. See Comar, Inc., 349 NLRB
342, 357–358 (2007); Superior Protection, Inc., 341 NLRB
614, 615 fn. 5 (2004), enfd. 401 F.3d 282 (5th Cir. 2005), cert.
denied 126 S.Ct. 244 (2005); Georgia-Pacific Corp., 329
NLRB 67, 74–75 (1999); Holly Farms, 311 NLRB 273, 279
(1993), enfd. 48 F.3d 1360 (4th Cir. 1995), cert. denied in per-
tinent part 516 U.S. 963 (1995).
For the reasons discussed above, I conclude that the repre-
sented employees retained a sufficient community of interest
distinct from the unrepresented employees to require continued
recognition even after the Respondent temporarily relocated the
unit employees from the Naperville facility to the Lisle facility
in June 2009. Therefore, the Respondent violated the Act when
it withdrew recognition from the Union in June 2009 during the
effective period of the collective-bargaining agreement.
2. Repudiation of the collective-bargaining agreement
The General Counsel alleges that the Respondent violated
section 8(a)(5) and (1) of the Act by repudiating the collective-
bargaining agreement to which it was obligated to adhere, and
unilaterally changing the terms and conditions of employment
of the unit employees. The evidence shows that when the Re-
spondent relocated the unit mechanics from the Naperville store
to the Lisle store, it ceased abiding by the applicable collective-
bargaining agreement and unilaterally changed the terms and
conditions of employment without the Union’s consent, and
without affording the Union notice or an opportunity to bar-
gain. By engaging in these activities the Respondent violated
Section 8(a)(5) and (1) of the Act. See R. Sabee Co., LLC, 351
NLRB 1350, 1357–1358 (2007) (holding that the employer
violated Sec. 8(a)(5) when it moved employees from one part
of a single-integrated enterprise to another and repudiated t0he
employees’ collective-bargaining agreement).
The Respondent does not directly address this allegation, but
presumably means to defend based on its argument that the
Naperville facility and the Lisle facility are separate entities and
that the Lisle facility, as a new employer for the former Naper-
ville mechanics, was entitled to impose new terms and condi-
tions of employment. This argument fails because, as discussed
above, Dodge of Naperville and Burke Automotive in Lisle are
a single employer. When that single employer relocated the
unit mechanics to another facility within the same integrated
business enterprise, it continued to be bound by the obligations
to adhere to the collective-bargaining agreement and bargain
with the Union over any changes to terms and conditions of
employment of Unit employees. R. Sabee Co., supra.
3. Bargaining over the effects of relocating
the unit mechanics from Naperville to Lisle
The General Counsel alleges that the Respondent violated
Section 8(a)(5) and (1) by failing and refusing to bargain with
the Union concerning the effects of the temporary relocation of
the unit employees from the Naperville facility to the Lisle
facility. The Board has held that an employer is required to
bargain over the effects of the relocation of unit work and that
obligation includes bargaining over the relocated workers’
wages, work locations, schedules, carryover of seniority, and
other terms and conditions of employment at the new facility,
as well as over the conditions of the transfer. See Comar, Inc.,
339 NLRB at 903, 913 (2003); Sea Jet Trucking Corp., 327
NLRB 540, 547 (1999), enfd. mem. 221 F.3d 196 (D.C. Cir.
2000); Holly Farms Corp., 311 NLRB at 279 fn. 25; Allied
Mills, 218 NLRB 281, 286–287 (1975), enfd. mem. 543 F.2d
417 (D.C. Cir. 1976), cert. denied mem. 431 U.S. 937 (1977);
and Cooper Thermometer Co., 160 NLRB 1902, 1912 (1966),
enfd. 376 F.2d 684 (2d Cir. 1967). I find that by failing and
refusing to bargain over the effects of relocating the unit me-
chanics to the Lisle facility the Respondent violated Section
8(a)(5) and (1). Sea Jet, 327 NLRB at 544; Transmarine Navi-
gation Corp., 170 NLRB 389 (1968).
The Respondent contends that it did not unlawfully fail to
bargain because the relocation was not a mandatory subject of
bargaining inasmuch as the relevant decisions were made by
Chrysler, not the Respondent. This argument fails both as a
matter of fact and a matter of law. The record evidence shows
that, contrary to the Respondent’s assertion, it was the Re-
spondent itself, not Chrysler, that selected the Naperville fran-
chise for elimination. As discussed above, Chrysler actually
selected the Naperville franchise to survive and the Lisle fran-
chises for elimination. After Ed Burke lobbied to change that
decision, Chrysler gave him a choice between preserving either
the franchise at the unionized Naperville store or the franchises
at the Lisle store. At that point Ed Burke made a decision to
sacrifice the Naperville franchise in order to revive the Lisle
franchises. According to his own testimony, Ed Burke could
have chosen, instead, to continue selling and servicing new
Chrysler-made cars at Dodge of Naperville.20 Ultimately,
Chrysler gave Ed Burke the “go ahead” to stop selling new cars
at the Naperville facility and switch over to selling new cars at
the Lisle facility. The evidence shows that Chrysler did not
require Ed Burke to make this change at all, much less require
him to make the change without taking the time to notify and
bargain with the Union.
The Respondent’s contention that Chrysler was responsible
for relocating the unit employees to the Lisle facility also over-
looks the fact that Ed Burke could have chosen to keep the
Naperville facility open even without a new car franchise for
that location. Ed Burke himself testified that when one of his
dealerships ceased to have a new car franchise he could contin-
ue to operate that dealership to sell and service used cars. In-
deed, he had kept the Lisle facility open during the period when
he lacked a new car franchise for it.
Even if the facts were different, the Respondent’s argument
would fail as a matter of law since the Respondent had an obli-
gation to bargain over the effects of the relocation regardless of
whether the decision to relocate was itself a mandatory subject

20 The Respondent’s assertion that it was Chrysler, rather than Ed
Burke, that made the decision, is contradicted not only by the record
evidence, but elsewhere in the Respondent’s brief, where it states: “Mr.
Burke was given a choice as to which franchises and dealerships he
wanted to keep. He chose to keep the Lisle dealership because it had
the most employees and was licensed to sell the most franchise lines.”
Brief of Respondent at p. 30.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2272
of bargaining. An employer “who relocates is required to bar-
gain in good faith with the collective-bargaining representative
of the unit employees regarding the effects of the relocation on
those employees, even where decisional bargaining is not re-
quired as a mandatory subject of bargaining.” Sea Jet Trucking
Corp., supra at 544 (emphasis added); see also Holly Farms
Corp., supra at 278 (while the employer did not have to bargain
over the decision to integrate operations, it was required to
bargain about “the various ways in which the integration might
affect the employment status and wages and benefits of [em-
ployees]”); Morco Industries, Inc., 279 NLRB 762, 762–763
(1986) (employer was not required to bargain over decision to
relocate work from one facility to another, but nevertheless was
required to bargain over layoffs connected to relocating the
work). The Respondent failed to bargain over those effects as
it was required to do.
The Respondent also contends that the Union failed to re-
quest, and therefore waived, effects bargaining. That conten-
tion is not persuasive. The waiver of a right under the Act will
not be found in the absence of clear and unambiguous evidence
to that effect. Metropolitan Edison Co. v. NLRB, 460 U.S. 693,
708 (1983). Waiver of the right to bargain based on a union’s
failure to request bargaining will not be found where the union
was not given advance notice of the change and/or where the
notice presented the change as a fait accompli. Eby-Brown Co.,
328 NLRB 496, 571–572 (1999); Jaydon, Inc., 273 NLRB
1594, 1601 (1985); Ciba-Geigy Pharmaceuticals Division, 264
NLRB 1013, 1017–1018 (1982), enfd. 722 F.2d 1120 (3d Cir.
1983); National Car Rental System, 252 NLRB 159 (1980);
Gratiot Community Hospital v. NLRB, 51 F.3d 1255, 1260 (6th
Cir. 1995); Gulf States Mfg. v. NLRB, 704 F.2d 1390, 1397 (5th
Cir. 1983). In this case, the Respondent did not give the Union
notice of its decision to relocate the unit from the Naperville
facility prior to closing that facility and telling the unit employ-
ees to report to the Lisle facility. Moreover, the Respondent
presented the terms of the relocation—including the lack of
minimum guaranteed hours, and the reduced health insurance
and retirement benefits—as a fait accompli. It did not give the
Respondent advance notice of its intent to make those changes,
but rather presented the changes as final and gave no indication
that it was willing to bargain in good faith on the subject. Un-
der the precedent cited above, even assuming that the Union
failed to request effects bargaining, it did not waive its right to
such bargaining since the Respondent did not give advance
notice of the changes and presented the changes as a fait ac-
compli.
At any rate, the record shows that the Union did, in fact, re-
quest bargaining. In his June 23, 2009 letter to the Respondent,
union official Jawor discussed the closure of the Naperville
store and the relocation of unit mechanics from there to the
Lisle store, then asked the Respondent to “meet to bargain
over” matters relating to the resulting expansion of the bargain-
ing unit. This was just 3 days after the Respondent notified unit
employees that the Naperville facility was closed and only 1
day after the Respondent advised unit employees to report for
work at the Lisle facility immediately. Although the Union’s
letter did not use the words “effects bargaining,” I conclude
that, by referencing the relocation and asking to bargain over
matters relating to the expansion of the bargaining unit, the
Union adequately requested bargaining over the effects of the
decision to relocate the unit mechanics to the Lisle facility.
Certainly, the Union’s request was sufficient to preclude a find-
ing that the Union clearly and unambiguously waived effects
bargaining, even assuming, contrary to my conclusion, that the
Respondent had given notice sufficient to permit a finding of
waiver.
The Respondent also argues that it did not refuse to bargain,
but rather was barred from doing so because it could not legally
bargain with a minority union. That argument is without merit.
First, as discussed above, the unit retained its distinct identity
even after the Naperville mechanics were relocated to the Lisle
facility. Thus the Respondent was required to bargain regard-
ing the Unit in which the Union had previously demonstrated
majority support, not regarding a new group that included all
the mechanics already present at the Lisle dealership. Second,
under applicable precedent, the Respondent would still have an
obligation to bargain over the effects of the relocation even if
one accepts its contention that the unit ceased to exist as a re-
sult of that relocation. See, e.g., Comar, Inc., supra at 354
(even if the bargaining unit had ceased to exist as a result of the
relocation of unit work, the employer would still have an obli-
gation to bargain over the effects of that relocation).
I conclude that the Respondent violated Section 8(a)(5) and
(1) by failing and refusing to bargain with the Union concern-
ing the effects of its temporary relocation of the unit from the
Naperville facility to the Lisle facility.
4. Information request
On July 8, 2009, the Union filed the initial charge, in which
it alleged that the Respondent had “unlawfully withdrawn
recognition from the Union and repudiated the collective-
bargaining agreement.” Then, on July 9, 2009, the Union made
an information request to the Respondent for all correspond-
ence between the Respondent and Chrysler regarding the ter-
mination of the franchise for the Lisle facility, and the Re-
spondent’s ongoing franchise agreement with Chrysler. The
information request suggested that this information related to
the Union’s contention that the Respondent had unlawfully
repudiated the collective-bargaining agreement and committed
contractual violations related to the relocation. As discussed
above, the Respondent did not answer the Union’s request until
March 4, 2010—approximately 8 months after it was made.
An employer’s obligation to bargain in good faith under Sec-
tion 8(a)(5) of the Act, includes the obligation to furnish the
employees’ bargaining representative, upon request, with in-
formation relevant to and necessary for the performance of the
Union’s statutory duty as the employees’ bargaining representa-
tive. NLRB v. Acme Industrial Co., 385 U.S. 432, 435–436
(1967). The duty requires not only that the employer provide
the information, but that it do so in a timely manner. An em-
ployer’s “unreasonable delay in furnishing . . . information is as
much of a violation of Section 8(a)(5) of the Act as a refusal to
furnish the information at all.” Amersig Graphics, Inc., 334
NLRB 880, 885 (2001); see also Britt Metal Processing, 322
NLRB 421, 425 (1996), affd. mem. 134 F.3d 385 (11th Cir.
NAPERVILLE JEEP/DODGE 2273
1997); Leland Stanford Junior University, 307 NLRB 75, 80
(1992).
In its brief, the Respondent does not argue that the infor-
mation sought was not relevant to the Union’s charge that the
Respondent had unlawfully repudiated the collective bargaining
agreement upon relocating the unit from the Naperville facility
to the Lisle facility. I find that the information was relevant to
that charge, and in particular to the Respondent’s defense that it
did not relocate the unit at all, but rather was forced by Chrysler
to close the Naperville store, and therefore, to terminate the
employment of the unit mechanics there. In addition, the Re-
spondent makes no attempt to justify its 8-month delay in an-
swering the information request. The information sought was
not voluminous or complex and, on its face, should have been
easy to provide within a matter of days or weeks.
I find that the Respondent unreasonably delayed providing
the information sought by the Union’s July 9, 2009 information
request, in violation of Section 8(a)(5) and (1).
C. Alleged Violations of Section 8(a)(1)
The General Counsel argues that at the time the unit employ-
ees were relocated to the Lisle store, the Respondent’s officials
made various statements that constituted threats in violation of
Section 8(a)(1). The record shows that on June 20, 22, and 26,
after turning employees away from the Naperville dealership,
officials of the Respondent informed the unit mechanics that
they could work at the Lisle dealership, but that: they would no
longer have union benefits; the Lisle dealership was not and
would never be a union facility; and that if the unit mechanics
engaged in a strike it would mean that they “quit and would not
be able to collect unemployment.” For the reasons discussed
above, contrary to the statements of the Respondent’s officials,
the unit mechanics continued to be entitled to union benefits
and representation after being temporarily relocated to the Lisle
facility.
The General Counsel cites caselaw holding that an employer
violates Section 8(a)(1) when it tells employees who are enti-
tled to union benefits that they will no longer receive them,
James Heavy Equipment Specialists, Inc., 327 NLRB 910, 913
(1999), states that the employer is not, and will never be, a
union operation, Alpine Coal Co., 150 NLRB 445, 449–450
(1964), and tells employees that they will be discharged if they
engage in a strike, Insta-print, Inc., 343 NLRB 368, 375–376
(2004), International Total Services, 270 NLRB 645, 649
(1984). In its brief, the Respondent contends that the evidence
does not show that its officials made the allegedly threatening
statements, however, it makes no substantial argument that
such statements would have been lawful if they were made.
Since I conclude that the Respondent’s officials made the of
statements set forth above, and since those statements are viola-
tions of Section 8(a)(1) under the precedent cited by the Gen-
eral Counsel, I find that a violation has been established.
I find that, in June 2009, the Respondent threatened unit em-
ployees in violation of Section 8(a)(1) by telling them that they
would no longer receive union benefits, that their continued
employment would be in a nonunion shop, that the shop would
never be unionized, and that if the unit employees engaged in a
strike their employment would be terminated and they would be
unable to receive unemployment compensation.
D. Alleged Constructive Discharges in Violation of
Section 8(a)(3) and (1)
The General Counsel argues that the Respondent construc-
tively discharged mechanics Adams and Marjanovich in viola-
tion of Section 8(a)(3) and (1). At the time of the relocation,
Adams and Marjanovich had worked for the Respondent at the
Naperville store for 5 and 10 years respectively. Adams had
been a union member for about 24 years and Marjanovich for
about 10 years. On June 26, Ed Burke informed the unit me-
chanics of the conditions of their post-relocation employment
with the Respondent. He stated that the employees would not
be represented by the Union, that the facility would never be
unionized, and that the Respondent would no longer provide
them with the terms set forth under the collective-bargaining
agreement. The Respondent would, he said, not honor the unit
mechanics’ contractual terms, such as the 34-hour weekly pay
guarantee, and the provision of health insurance and a pension
plan at no cost to the employee.
After the June 26 meeting, Adams and Marjanovich both de-
cided that they could not afford to continue their employment
for Respondent under the terms being offered. During the 3
days when Adams and Marjanovich had worked at the Lisle
facility they had each accumulated an average of just 4 to 5
paid hours per day. Both also required family health insurance,
which the Respondent was only making available at a cost to
the employee of approximately $600 to $800 per month.21 On
June 29, Adams and Marjanovich both informed the Respond-
ent that they were declining further employment given the
terms it was imposing at the Lisle facility.
“[U]nder the Hobson’s Choice line of cases, an employee’s
voluntary resignation will be considered a constructive dis-
charge when an employer conditions the employee’s continued
employment on the employee’s abandonment of his or her Sec-
tion 7 rights and the employee quits rather than comply with the
condition.” Intercon I (Zercom), 333 NLRB 223 (2001), citing
Hoerner Waldorf Corp., 227 NLRB 612 (1976). Under this
constructive discharge standard, “[e]mployees who quit work
as a consequence of an employer’s unlawful withdrawal of
recognition from their collective-bargaining representative and
unilateral implementation of changes in their terms and condi-
tions of employment have been constructively discharged.”
Goodless Electric Co., 321 NLRB 64, 67–68 (1996), enf. de-
nied on other grounds 124 F.3d 322 (1st Cir. 2002), citing Ev-
ans Service Co., 285 NLRB 80, 81 (1987); and Superior Sprin-
kler, Inc., 227 NLRB 204 (1976); see also James Heavy
Equipment Specialists, supra at 914 (an employee who quit
because of the impact that his employer’s unlawful actions had
on his union pension was constructively discharged). In the
instant case, Adams and Marjanovich resigned their employ-
ment as a consequence of the employer’s unlawful withdrawal
of recognition, repudiation of the collective-bargaining agree-

21 Lein, a unit mechanic who continued to work for the Respondent,
testified that he was able to avoid the health insurance premiums at the
Lisle store because he had coverage through his wife’s employer.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2274
ment, and unilateral imposition of nonunion terms and condi-
tions of employment.
The Respondent contends that constructive discharge has not
been established because the record does not show that either
Adams or Marjanovich attempted to organize the Lisle facility
for the Union during the 3 days they worked there. This argu-
ment misses the point. As discussed above, Adams and Marja-
novich were already entitled to continued union representation
at the Lisle facility, and the Respondent unlawfully withdrew
that recognition and made unilateral changes, then required
Adams and Marjanovich to accept that unlawful conduct as a
condition of continued employment. Under the Hobson’s
Choice line of cases, Adams and Marjanovich were construc-
tively discharged when they chose to resign rather than contin-
ue employment under such circumstances.
I find that the Respondent constructively discharged Adams
and Marjanovich on June 29, 2009, in violation of Section
8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. Dodge of Naperville, Inc. and Burke Automotive Group,
Inc., d/b/a Naperville Jeep/Dodge constitute a single employer
for purposes of the Act and are jointly and severally liable for
the violations of the Act found in this decision.
2. Respondent Dodge of Naperville, Inc. and Respondent
Burke Automotive Group, Inc. d/b/a Naperville Jeep/Dodge,
both individually and as a single employer, are employers en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
3. Automobile Mechanics Local No. 701, International As-
sociation of Machinists and Aerospace Workers, AFL–CIO is a
labor organization within the meaning of Section 2(5) of the
Act.
4. The Respondent violated Section 8(a)(5) and (1) of the
Act: in June 2009 by withdrawing recognition from the Union
as the exclusive collective-bargaining representative of em-
ployees in the bargaining unit during the effective period of the
collective bargaining agreement; in June 2009 by repudiating
the collective-bargaining agreement with the Union and unilat-
erally changing the terms and conditions of employment of
bargaining unit employees; by failing and refusing to bargain
with the Union concerning the effects of its temporary reloca-
tion of the bargaining unit; and by unreasonably delaying the
provision of information sought by the Union’s July 9, 2009,
information request.
5. The Respondent threatened bargaining unit employees in
violation of Section 8(a)(1) in June 2009 by telling them that
they would no longer receive Union benefits, that their contin-
ued employment would be in a non-union shop, that the shop
would never be unionized, and that if the unit employees en-
gaged in a strike their employment would be terminated and
they would be unable to receive unemployment compensation.
6. The Respondent violated Section 8(a)(3) and (1) of the
Act on June 29, 2009, by constructively discharging unit em-
ployees Robert Adams and Mike Marjanovich.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. In particular, the Respondent should
be required to offer Adams and Marjanovich reinstatement and
make them whole for any loss of earnings and other benefits,
computed on a quarterly basis from the date of the constructive
discharge to the date of a proper offer of reinstatement, less any
net interim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Horizons,
283 NLRB 1173 (1987).
Having found that the Respondent violated Section 8(a)(5)
and (1) by withdrawing recognition from the Union and refus-
ing to bargain in good faith, I recommend that the Respondent
be ordered to meet, on request, with the Union and bargain in
good faith concerning the terms and conditions of employment
for the employees in the unit and, if an understanding is
reached, reduce the agreement to writing and sign it. I also
recommend that the Respondent be ordered to bargain in good
faith regarding the effects of the temporary relocation of the
unit employees.
I recommend that the Respondent be ordered to revoke the
unilateral changes the Respondent made to the terms and condi-
tions of employment of unit employees and restore the terms
and conditions that existed under the most recent collective-
bargaining agreement, until such time as an agreement is
reached for a new collective-bargaining agreement or good
faith negotiations result in a lawful impasse. In addition, I rec-
ommend that the Respondent be ordered to make the Unit em-
ployees whole for any losses of wages, health insurance bene-
fits, vacation pay, pension benefits, and other benefits they may
have incurred as a result of the unilateral changes, as set forth
in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444
F.2d 502 (6th Cir. 1971). The Respondent should also be or-
dered to remit all payments it owes to health care, pension, and
other funds, with interest as provided in Merryweather Optical
Co., 240 NLRB 1213 (1979), and to make the employees whole
for any expenses they may have incurred as a result of the Re-
spondent’s failure to make such payments, as set forth in Kraft
Plumbing & Heating, 252 NLRB 891 (1980), enfd. 661 F.2d
940 (9th Cir. 1981). In addition, the Respondent should be
ordered to continue such contributions and otherwise honor the
terms of the most recent collective-bargaining agreement until
it negotiates in good faith with the Union to a new contract or a
bona fide impasse. Crest Beverage Co., 231 NLRB 116, 120
(1977).
The General Counsel urges that the Board’s current practice
of awarding only simple interest on backpay and other mone-
tary awards be replaced with the practice of compounding in-
terest. The Board has considered, and rejected, this argument
for a change in its practice. Cadence Innovation, LLC, 353
NLRB 703, 703 fn. 1 (2009); Rogers Corp., 344 NLRB 504
(2005). I am bound to follow Board precedent on the subject.
See Hebert Industrial Insulation Corp., 312 NLRB 602, 608
(1993); Lumber & Mill Employers Assn., 265 NLRB 199 fn. 2
(1982), enfd. 736 F.2d 507 (9th Cir. 1984), cert. denied 469
U.S. 934 (1984); Los Angeles New Hospital, 244 NLRB 960,
NAPERVILLE JEEP/DODGE 2275
962 fn. 4 (1979), enfd. 640 F.2d 1017 (9th Cir. 1981). There-
fore, the merits of the General Counsel’s argument in favor of
compounding interest are for the Board to consider, not me.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended Order.22
ORDER
The Respondent, Dodge of Naperville, Inc. and Burke Au-
tomotive Group, Inc. d/b/a Naperville Jeep/Dodge a single
employer, Lisle, Illinois, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with the Au-
tomobile Mechanics Local No. 701, International Association
of Machinists and Aerospace Workers, AFL–CIO (the Union)
as the exclusive collective-bargaining agent of employees in the
Dodge of Naperville bargaining unit (unit employees). The
bargaining unit includes all technicians, apprentices, lube rack
technicians, and semiskilled technicians who were employed at
the Respondent’s facility in Naperville, Illinois, (the Naperville
facility) immediately prior to the June 2009 relocation of em-
ployees to the Respondent’s facility in Lisle, Illinois, (the Lisle
facility) but excludes all office clerical employees and guards,
professional employees and supervisors as defined in the Act.
(b) Withdrawing recognition from the Union as the exclusive
collective-bargaining agent of the unit employees as a conse-
quence of the June 2009 relocation of operations and employ-
ees from the Naperville facility to the Lisle facility.
(c) Repudiating the most recent collective-bargaining agree-
ment covering the unit employees.
(d) Telling the unit employees that they no longer work in a
union shop and that the dealership will never be a union shop.
(e) Telling the unit employees that it does not recognize the
Union as their collective-bargaining representative.
(f) Constructively discharging unit employees by requiring
them to work without union representation and under unilater-
ally changed terms and conditions of employment.
(g) Making unilateral changes without notice to and bargain-
ing with the Union regarding the terms and conditions of em-
ployment of unit employees.
(h) Refusing to meet and bargain in good faith with the Un-
ion with respect to the effects on the unit employees of the June
2009 relocation of operations and employees from the Naper-
ville facility to the Lisle facility.
(i) Failing to provide, and/or unreasonably delaying the pro-
vision of, information requested by the Union that is relevant
and necessary for the Union to fulfill its role as the collective-
bargaining representative of unit employees.
(j) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.

22 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
(a) Upon request, bargain in good faith with the Union as the
exclusive collective-bargaining representative of unit employ-
ees concerning terms and conditions of employment and, if an
understanding is reached, embody the understanding in a signed
agreement.
(b) Apply and restore the terms and conditions of employ-
ment that were applicable to the unit employees under the most
recent collective-bargaining agreement covering the unit em-
ployees, until such time as the Union and the Respondent reach
agreement for a new collective-bargaining agreement or a law-
ful impasse based on good-faith negotiations.
(c) Revoke the unilateral changes the Respondent made to
the terms and conditions of unit employees since the unlawful
repudiation of the collective-bargaining agreement.
(d) Make the unit employees whole for losses of wages and
other benefits they suffered as result of the Respondent’s failure
to abide by the terms of the collective-bargaining agreement,
including by reimbursing employees for medical premiums,
medical expenses, and other expenses they incurred as a result
of such failure, with interest, as provided in the remedy section
of this decision.
(e) Remit all payments to health care, pension, and/or other
funds, that it was required to make under the most recent col-
lective bargaining agreement with the Union, but which it
failed to make, as set forth in the remedy section of this deci-
sion.
(f) Bargain in good faith with the Union regarding the effects
on unit employees of the relocation of operations and employ-
ees from the Respondent’s Naperville facility to its Lisle facili-
ty.
(g) Make the unit employees whole for any losses they suf-
fered as a result of the Respondent’s failure and refusal to bar-
gain with the Union regarding the effects of the relocation of
operations and employees from the Naperville facility to the
Lisle facility.
(h) Within 14 days from the date of the Board’s Order, offer
Robert Adams and Mike Marjanovich full reinstatement to their
former jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
(i) Make Robert Adams and Mike Marjanovich whole for
any loss of earnings and other benefits suffered as a result of
their being constructively discharged, with interest, in the man-
ner set forth in the remedy section of the decision.
(j) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(k) Within 14 days after service by the Region, post at its fa-
cilities in Lisle, Illinois, and Naperville, Illinois, copies of the
attached notice marked “Appendix.”23 Copies of the notice, on

23 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2276
forms provided by the Regional Director for Region 13, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60 con-
secutive days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the Re-

tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
spondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current and
former unit employees employed by the Respondent at any time
since June 1, 2009.
(l) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.