Landmark International Trucks, Inc.

National Labor Relations Board - Board Decisions

Sep 16, 1981

257 N.L.R.B. 1375 (N.L.R.B. 1981)

LANDMARK INTERNATIONAL TRUCKS. INC.
Landmark International Trucks, Inc. and Local
Lodge 555 of the International Association of
Machinists and Aerospace Workers, AFL-CIO.
Case 10-CA-15673
September 16, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On May 8, 1981, Administrative Law Judge Wil-
liam N. Cates issued the attached Decision in this
proceeding. Thereafter, Respondent and the Gener-
al Counsel filed exceptions and briefs in support
thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order,2 as
modified herein.
'Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951) We have
carefully examined the record and find no basis for reversing his findings
We agree with the Administrative Law Judge that, in the circum-
stances of this case. Respondent's acts of assistance in providing service
department employees with form letters, preaddressed envelopes, and de-
tailed instructions were more than ministerial, that the plan devised al-
lowed Respondent to monitor unit employees' decisions whether to
resign from the Union, and that Respondent had no contractual or other
need to obtain this information. We find that the pressure placed upon
employees by Respondent's request to be informed of their decisions re-
garding resignation from the Union, in light of the fact that Respondent
had no valid reason for obtaining this information, such as existed in Per-
kins Machine Company, 141 NLRB 697 (1963) (contract required notice
of revocation of checkoff authorizations to be sent to the company
during an annual 15-day escape period), was coercive. We disavow the
Administrative Law Judge's distinguishing of Perkins to the extent not
consistent herewith.
In agreeing with the Administrative Law Judge's conclusion that Re-
spondent's conduct constituted 8(a)(l) interference with employee rights,
we find it unnecessary to rely upon his finding that at the time of Re-
spondent's unlawful acts it had received no request for assistance.
2 The Administrative Law Judge failed to conform his Conclusions of
Law and recommended Order with his findings. We shall amend his
Conclusions of Law and modify his recommended Order where appropri-
ate to reflect his findings that Respondent recognized the Union as the
exclusive bargaining representative of the unit employees on or about
November 15, 1979; that Respondent began bargaining with the Union as
the exclusive bargaining representative of the unit employees on or about
November 15, 1979; and that Respondent withdrew recognition from the
Union as the exclusive bargaining representative of the unit employees in
violation of Sec. 8(aX5) and (1) of the Act on or about December 4,
1979. We shall also modify the Administrative Law Judge's recommend-
ed Order to reflect that the unit employees are employed by "Respond-
ent" rather than "Harvester.," Finalls. the Administratise Law Judge in-
advertently miscited Thomas Industries. Inc. The correct citation is 255
NLRB 646 (1981)
The Administrative Law Judge found that Re-
spondent, on November 15, 1979, voluntarily rec-
ognized the Union as the exclusive bargaining rep-
resentative of its service department employees,
and commenced negotiations with the Union on
that date. He further found that Respondent, on
December 4, 1979, withdrew recognition from the
Union. Finally, the Administrative Law Judge con-
cluded that Respondent's withdrawal of recogni-
tion was in violation of Section 8(a)(5) and (1) of
the Act. Primarily for the reason discussed below,
as well as for the reasons advanced by the Admin-
istrative Law Judge, 3 we find that Respondent vio-
lated Section 8(a)(5) and (1).
It is well-established Board law that, once an em-
ployer has voluntarily recognized a majority union,
that union becomes the unit employees' exclusive
bargaining representative with which the employer
is bound to bargain, and that withdrawal by the
employer from its commitment to recognize the
union without affording a reasonable time for bar-
gaining violates the employer's bargaining obliga-
tion. Brown & Connolly, Inc., 237 NLRB 271, 275
(1978), enfd. 593 F.2d 1373 (Ist Cir. 1979); Keller
Plastics Eastern, Inc., 157 NLRB 583, 587 (1966).
Such a requirement to continue bargaining serves
to effectuate the policies of the Act by offering the
parties a reasonable opportunity to negotiate suc-
cessfully and to execute an agreement.
Based upon the Administrative Law Judge's
findings, with which we agree, Respondent's obli-
gation to bargain attached on November 15, 1979,
when it voluntarily recognized the Union. We do
not believe that the time between that date and De-
cember 4, 1979, offered a reasonable opportunity
for bargaining to succeed,4 and we therefore find
that Respondent's withdrawal of recognition on the
latter date was in violation of Section 8(a)(5) and
(1) of the Act.
AMENDED CONCLUSIONS OF LAW
Insert the following as paragraphs 7, 8, and 9,
and renumber paragraphs 7 and 8 accordingly:
"7. On or about November 15, 1979, Respondent
recognized the Union as the exclusive bargaining
representative of the employees in the aforesaid ap-
propriate bargaining unit.
' Assuming, arguendo, that Respondent had not voluntarily recognized
the Union, we would find, for the reasons discussed by the Administra-
live Law Judge that Respondent failed to present objective consider-
ations that would support a good-faith doubt as to the Union's continuing
majority status.
We can discern no principle that would support distinguishing a suc-
cessor employer's bargaining obligation based on voluntary recognition
of a majority union from any other cmploers duly to bargain for a rea-
sonahle period
257 NLRB No. 170
1375
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"8. On or about November 15, 1979, Respondent
began bargaining with the Union as the exclusive
bargaining representative of the employees in the
aforesaid appropriate bargaining unit.
"9. On or about December 4, 1979, Respondent
withdrew recognition from the Union as exclusive
bargaining representative of the employees in the
aforesaid appropriate bargaining unit in violation of
Section 8(a)(5) and (1) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Landmark International Trucks, Inc., Knoxville,
Tennessee, its officers, agents, successors, and as-
signs, shall take the action set forth in the said rec-
ommended Order, as so modified:
1. Substitute the following for paragraph l(a):
"(a) Refusing to recognize and bargain collec-
tively with Local Lodge 555 of the International
Association of Machinists and Aerospace Workers,
AFL-CIO, as the exclusive bargaining representa-
tive of the employees in the following appropriate
bargaining unit:
"All mechanics, helpers and apprentices em-
ployed by Respondent at its Knoxville, Ten-
nessee, Motor Truck Service Station; exclud-
ing the foremen, manager, clerical employees,
supervisors as defined in the Act, and all other
employees."
2. Insert the following as paragraph l(b) and re-
letter the subsequent paragraphs accordingly:
"(b) Withdrawing recognition from the Union as
the exclusive bargaining representative of the em-
ployees in the aforesaid appropriate bargaining
unit."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT refuse to recognize and bar-
gain with Local Lodge 555 of the Internation-
al Association of Machinists and Aerospace
Workers, AFL-CIO, as the exclusive bargain-
ing representative of our employees in the fol-
lowing appropriate bargaining unit:
All mechanics, helpers and apprentices em-
ployed by the Employer at its Knoxville,
Tennessee, Motor Truck Service Station; ex-
cluding the foremen, manager, clerical em-
ployees, supervisors as defined in the Act,
and all other employees.
WE WILL NOT withdraw recognition from
the aforesaid Union as the exclusive bargaining
representative of our employees in the appro-
priate unit described above.
WE WILL NOT solicit our employees to with-
draw from membership in the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of rights guaranteed under
Section 7 of the Act.
WE WILL recognize and, upon request, bar-
gain collectively with the aforesaid Union as
the exclusive representative of all employees in
the appropriate unit described above with
regard to rates of pay, hours of employment,
and other terms and conditions of employ-
ment, and, if an understanding is reached,
embody such understanding in a signed agree-
ment.
LANDMARK INTERNATIONAL TRUCKS, INC.
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge: This
matter was heard in Knoxville, Tennessee, on January
21, 1981. Upon a charge filed on April 1, 1980, by Local
Lodge 555 of the International Association of Machinists
and Aerospace Workers, AFL-CIO, herein the Union or
the Charging Party, the Regional Director for Region 10
of the National Labor Relations Board, herein the Board,
issued a complaint on June 27, 1980, alleging that Land-
mark International Trucks, Inc., herein Respondent, vio-
lated Section 8(a)(1) and (5) of the National Labor Rela-
tions Act, as amended, by soliciting employees to with-
draw from membership in the Union and by withdraw-
ing recognition from and thereafter failing and refusing
to bargain with the Union with respect to rates of pay,
wages, hours of employment, and other terms and condi-
tions of employment.
1376
LANDMARK INTERNATIONAL TRUCKS, INC
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Delaware corporation licensed to do
business in the State of Tennessee with an office and
place of business located in Knoxville, Tennessee, where
it is engaged in the sale and service of trucks. During the
12-month period preceding the hearing of the case
herein, Respondent had a gross volume of business in
excess of $500,000, and during the same period pur-
chased and received at its Knoxville, Tennessee, oper-
ation goods valued in excess of $50,000 directly from
suppliers located outside the State of Tennessee.
The complaint alleges, Respondent admits, and I find
that it is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent admits, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
IIl. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
For a number of years, International Harvester Com-
pany, herein Harvester, operated an office and place of
business in Knoxville, Tennessee, where it was engaged
in the sale and service of new International Harvester
trucks and other types of used trucks. Harvester recog-
nized and on or about March 29, 1977, entered into a
collective-bargaining agreement with the Union which
by its terms expired on December 1, 1979. Harvester also
executed a local supplemental contract with the Union
on or about April 18, 1978, which supplemental agree-
ment by its terms expired on April 20, 1981. Harvester
recognized the Union as the exclusive bargaining repre-
sentative of its employees in an appropriate unit de-
scribed as follows:
All mechanics, helpers and apprentices employed
by Harvester at its Knoxville, Tennessee, Motor
Truck Service Station; excluding the foremen, man-
ager, clerical employees, supervisors as defined in
the Act, and all other employees.
Harvester ceased operations at its Knoxville, Tennes-
see, facility on October 31, 1979. On November 1, 1979,
Respondent acquired Harvester's Knoxville, Tennessee,
facility and took complete control of the business on that
date. There is no contention that Respondent assumed
the collective-bargaining agreements between Harvester
and the Union. Respondent purchased Harvester's inven-
tory and other assets and has since November 1, 1979,
engaged in business operations identical to Harvester;
that is, selling and servicing new International Harvester
trucks and other types of used trucks at the same geo-
graphical location. The parties stipulated at the hearing
that Respondent sought to do business with the same
customers as Harvester. The stipulation was as follows:
Although [Respondent] did not know the identity of
all customers of [Harvester] in the Knoxville, Ten-
nessee trade area, [Respondent] since November 1,
1979, has sought to do business with all credit
worthy persons in that area desiring services and
materials of the nature provided by [Respondent]
including credit worthy persons and entities whose
accounts receivable [Respondent] purchased from
[Harvester] and prospective customers with whom
[Harvester] had sought or planned to do business.
As of October 31, 1979, Harvester employed 31 em-
ployees in the service department at its Knoxville, Ten-
nessee, facility.' As of November 1, 1979, when Re-
spondent took control of Harvester's business, its service
department was comprised of 18 employees, 17 of whom
had previously been employed by Harvester. Also, the
sales personnel employed by Respondent on November
1, 1979, had until October 31, 1979, been employed by
Harvester. Of Respondent's six accounting department
employees, five were previous employees of Harvester.
Harvester's service manager, Fred Martin, was hired as
of November 1, 1979, to be Respondent's service man-
ager. Harvester's branch manager, J. F. Coble, Jr., was
hired at the commencement of Respondent's operations
as the sales manager in the truck department. Harvester's
assistant service manager, Jerry Kilpatrick, was hired by
Respondent at the commencement of its operations as its
service manager.
B. The Issues
The principal issues which were raised by the plead-
ings are:
1. Whether Respondent is a successor employer to
Harvester.
2. Whether Respondent was obligated to bargain with
the Union on and after its November 1, 1979, assumption
of complete control of Harvester's Knoxville, Tennessee,
operation.
3. Whether the Union requested recognition and
whether Respondent recognized the Union as the collec-
tive-bargaining representative of its service department
employees.
4. Whether Respondent on or about November 19,
1979, in violation of Section 8(a)(1) of the Act, solicited
its employees to withdraw from the Union.
5. Whether Respondent, by withdrawing recognition
from and refusing to bargain with the Union, violated
Section 8(a)(5) of the Act.
C. The Successorship Issue
The Board held in Miami Industrial Trucks. Inc. and
Bobcat of Dayton, Inc., 221 NLRB 1223., 1224 (1975):
'The record evidence would indicate that, although listed on G.C.
Exh. 3 as employees In the service department ot Harvester on October
31. 1979, F. T. Donahoo and W. R. Hogans were not employed in that
department.
1377
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The keystone in determining successorship is
whether there is substantial continuity of the em-
ploying industry.
The Board, in Miami Industrial Trucks, Inc., supra, as
well as in Saks & Company, d/b/a Saks Fifth Avenue, 247
NLRB 1047 (1980), enfd. in pertinent part 634 F.2d 681
(2d Cir. 1980), explained what it meant by continuity of
the employing industry. In its explanation, the Board
took into consideration factors such as whether the busi-
ness continued to be operated at the same location with
the same work force and supervision, rendering the same
product and/or services to essentially the same or like
customers. See also Hot Bagels and Donuts of Staten
Island, Inc. and Amboy Baking, Inc., 244 NLRB 129
(1979), enfd. 622 F.2d 1113 (2d Cir. 1980). In the instant
case all of the factors indicating a successor employer
were present; i.e., Respondent operated the facility at the
same location without a hiatus, operated the identical
type of business, and rendered the same service and
product, and, as indicated by the stipulation set forth,
supra, Respondent sought and continues to seek to do
business with the same or like customers that Harvester
did. Respondent's service department work force was
composed of 18 employees, 17 of whom had previously
been employed by Harvester. Additionally, Respondent
retained the same sales employees and, except for one,
the same accounting or clerical employees and essentially
the same managerial personnel.
Respondent, in its brief, appears to concede that the
facts of the instant case warrant a finding that it is a suc-
cessor employer.
Based on the established facts as outlined above, I con-
clude and find that Respondent is a successor employer
to Harvester.
D. Respondent's Bargaining Obligation on and After
November 1, 1979
At the time Respondent became a successor employer,
there was in existence a national collective-bargaining
agreement as well as a local supplemental agreement
(G.C. Exhs. 9 and 11). Respondent was, therefore, sub-
ject to a bargaining obligation inasmuch as the predeces-
sor had in a presumptively appropriate unit such an obli-
gation. The collective-bargaining agreement referred to
above established a rebuttable presumption of the
Union's continued majority representative status in the
unit described supra. Barrington Plaza and Tragneiw, Inc.,
185 NLRB 962 (1970), enforcement denied on other
grounds sub nom. N.L.R.B. v. Tragniew, Inc. and Consoli-
dated Hotels of California, 470 F.2d 669 (9th Cir. 1972).
Such a presumption is applicable to a successor employ-
er. In N.L.R.B. v. William J. Burns International Security
Services, Inc., 406 U.S. 272 (1972), the Supreme Court af-
firmed the Board's successor employer doctrine finding
that a successor employer, absent a reasonably based
good-faith doubt of the incumbent union's majority, is
obligated to recognize the continuing representative
status of the bargaining agent of its predecessor's em-
ployees in an appropriate unit taken over from the prede-
cessor. See Zylan Pontiac, 252 NLRB 201, 202 (1980). I
find such a presumption to exist in the instant case. I
shall consider infra whether Respondent at any time
overcame the presumption of a continuing majority rep-
resentative status by the Union. Additionally, I shall con-
sider whether the Union at any time made a demand of
Respondent for recognition and/or bargaining.
E. The Issue of the Union's Request for and
Respondent's Recognition of the Union
In a letter dated October 31, 1979, which stated as a
subject matter "Union recognition," the Union, through
Grand Lodge Representative McClendon, apprised Re-
spondent as follows:
Take notice that in accordance with the provi-
sions of the Labor Management Relations Act, as
amended, the International Association of Machin-
ists and Aerospace Workers, Local 555, is the col-
lective-bargaining representative of your employees.
Be advised that we are requesting a meeting with
you for the purpose of representation and negotia-
tions.
Be further advised that we are arranging our
schedule to meet with you at an early date.
Please advise me of the time, date, and place you
desire to meet.
Respondent acknowledged receipt of the letter on No-
vember 2, 1979.
Respondent contends that the duty to recognize and
bargain presupposes that a demand for recognition and
for bargaining has been made, citing Raymond Convales-
cent Hospital, Inc., 216 NLRB 494, 500 (1975). Respond-
ent contends that the letter from the Union was not clear
or precise enough to impose upon Respondent a duty to
recognize or bargain with the Union. The Respondent
further contends the letter did not state with specificity
what employees the Union contended or claimed it was
representing. In summary, Respondent contends that the
Union's letter of October 31, 1979, was so vague, am-
biguous, and legally inoperative that it could not consti-
tute in any way a demand for recognition or a notifica-
tion of the unit for which the Union sought recognition.
Respondent contends that, if the Union had been refer-
ring to its service department employees only, it should
have so stated in clear and unequivocal language in its
letter.
Counsel for the General Counsel contends that
Union's October 31, 1979, letter constituted a demand of
Respondent for recognition and bargaining and as such,
in the circumstances of the instant case, Respondent was
obligated to bargain with the Union. Counsel for the
General Counsel further contends that "at the latest, Re-
spondent's obligation [to recognize and bargain] took
effect on November 2 when Respondent received the
demand letter from the Union." Counsel for the General
Counsel contends that Respondent's argument that the
Union's demand for recognition and bargaining was inad-
equate is without merit.
A clear reading of the Union's October 31, 1979,
letter, which stated as its subject matter "Union recogni-
tion," taken in conjunction with the national and local
supplemental collective-bargaining agreements which Re-
1378
LANDMARK INTERNATIONAL TRUCKS, INC.
spondent's predecessor had with the Union, leaves no
room for doubt that the Union was requesting recogni-
tion and negotiations with respect to the service depart-
ment employees. It is equally as clear that the Union was
specifically making a demand of Respondent for recogni-
tion and bargaining. A conclusion that Respondent knew
that the Union was referring to the service department
employees was further borne out by the testimony of Re-
spondent's president, Clarence Mayo Sydes, when he
stated, "On November 6 1 informed the employees that I
had received a letter from Mr. McClendon and that I
had responded on November 6 to that letter." Sydes fur-
ther testified that he did not meet with any other em-
ployees except those of the service department with re-
spect to the letter he had received from the Union on
November 2, 1979, or his response of November 6, 1979.
Sydes' letter of November 6, 1979, addressed to Grand
Lodge Representative McClendon of the Union, simply
acknowledged receipt of the October 31 letter and indi-
cated a willingness to meet during the week of Novem-
ber 12, 1979.
I conclude and find that the overwhelming weight of
the evidence indicates that Respondent knew that the
Union's demand for recognition pertained to the service
department employees. I simply find Sydes' testimony
that he was not informed that the Union's demand re-
ferred to the service department employees until he met
with the Union on November 15, 1979, as unpersuasive.
The October 31 letter of the Union, Respondent's No-
vember 6 response (G.C. Exhs. 5 and 6), and Sydes' ac-
tions on November 6 and thereafter indicate full well
that Respondent knew the unit for which the Union
sought recognition and bargaining.
As a result of the October 31 and November 6, 1979,
letters, the parties mutually agreed on a meeting date of
November 15, 1979. Those present for Respondent at the
November 15, 1979, meeting were Sydes and Respond-
ent's service manager, Fred Martin. Those present for
the Union were Grand Lodge Representative McClen-
don and Local Union President A. G. Shelton. The
meeting lasted approximately 15 to 20 minutes and was
held at the Valley Fidelity Bank Building in Knoxville.
Tennessee. Grand Lodge Representative McClendon
stated that the parties exchanged introductions and per-
sonal histories and then, according to McClendon, he
told Sydes, "[O]ur purpose there was, as stated in the
letter, for gaining recognition from his corporation and
to negotiate a collective-bargaining agreement. Although
I had no documents prepared, I wanted to have-I
wanted to set a future meeting where I wanted to pres-
ent proposals."
Counsel for the General Counsel also called Local
Union President Shelton to testify with respect to the
November 15, 1979, meeting. Shelton essentially cor-
roborated the testimony of McClendon except that Shel-
ton stated that there was discussion of Respondent's in-
surance program. According to Shelton, there had been
some complaints from some of the members that they
would have to pay a portion of their insurance coverage
because Respondent had taken over the operation of
Harvester. Neither Sydes nor McClendon testified with
respect to insurance being discussed; in fact, Sydes
denied that insurance was discussed. I discredit the testi-
mony of Shelton that insurance was discussed at the No-
vember 15, 1979, meeting. Shelton did not impress me as
a credible witness for, among other reasons. he testified,
as will be discussed infra, that he did not know of any
employee's withdrawing from the Union nor had he
heard about any withdrawals from the Union from any
other source. However, employee Whaley's withdrawal
card (Resp. Exh. 2) bore the signature of Shelton as the
representative who authorized the withdrawal of Whaley
from the Union.
Sydes testified with respect to the November 15, 1979,
meeting with the Union that, after the parties exchanged
"pleasantries," he asked "Mr. McClendon what the pur-
pose of this meeting was, and he indicated to me first
that he was seeking representation for the service depart-
ment employees, and if we so allowed him to have repre-
sentation, then he would seek to bargain a contract."
Sydes testified this was the first time he had clearly been
informed that it was the service department employees
for whom the Union was seeking recognition. Sydes tes-
tified he told McClendon that he would take his request
for recognition and bargaining under advisement. Sydes
stated he did not grant the Union recognition at that
meeting. A date of December 12, 1979, was mutually
agreed to between the parties for the next meeting.
McClendon did not recall Syde's making any state-
ment with respect to taking the matter of whether to
recognize and bargain with the Union under advisement.
McClendon further explained the reason "we [the Union]
didn't propose recognition at that meeting. My letter had
told him [Sydes] we wanted to meet to talk about these
things but I explained to him I didn't have specific pro-
posals ready but I would have at a future meeting."
I discredit the testimony of Sydes that he informed the
Union he would take the matter of recognition of and
bargaining with the Union under advisement. The ac-
tions of the parties indicate and dictate a conclusion that
such a statement was not made. If Respondent was
simply taking the matter under advisement as to whether
to recognize the Union or not, there would have been no
need to set a December 12 date for further discussions
inasmuch as a meeting would not have been necessary
until it was determined by Respondent whether it was
going to recognize the Union. Further, the correspond-
ence between the parties of October 31 and November 6,
taken in conjunction with the acknowledged request of
McClendon to recognize and bargain with the Union at
the November 15 meeting and an agreement for a subse-
quent December 12 meeting, all indicate a recognition of
the Union by Respondent and demonstrate an undertak-
ing on the part of Respondent to negotiate with the
Union.
I credit the testimony of McClendon that he informed
Sydes at the November 15 meeting of his intention to
present contract proposals at the December 12, 1979,
meeting. McClendon's testimony in that respect is sup-
ported by General Counsel's Exhibit 10, which was pro-
posals the Union indicated it had prepared to present to
Respondent in anticipation of its December 12, 1979,
scheduled meeting. Based on the credited testimony set
1379
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out above, and taken in conjunction with the supporting
record documentation, I conclude and find that the par-
ties agreed to December 12, 1979, as a meeting date for
the explicit purpose of negotiating further toward a col-
lective-bargaining agreement.
F. The Alleged Solicitation of Employees To Withdraw
From the Union
Sydes testified he met with the service department em-
ployees on November 15, 1979, after having met with
the Union. Sydes stated, "I informed them that I had had
the meeting with Mr. McClendon and Mr. Shelton, and
that, one, he was seeking representation for them-the
service center employees, and, two if that were granted,
then, two, was going to seek to negotiate a contract."
Sydes testified that thereafter several employees stated in
essence, "We don't want to be in the Union. How do we
get out of the Union?" Sydes testified that the inquiries
came at a time when he had not asked for comments or
questions. Sydes recalled, "Two employees that I re-
member . . . asked about getting out of the Union." At
that point, according to Sydes, employee Whaley stood
up, patted his locker, and said, "I have resignation cards
for everyone here." Sydes testified he was surprised at
what he heard and stated to the group, "I don't know
anything at all about this, but I will endeavor to ascer-
tain your legal rights for resigning from the Union ....
Whether you stay in the Union or resign is up to you."
Sydes acknowledged on cross-examination that he "in-
terpreted" the "essence" of the comments of the two em-
ployees to be a request for assistance on how to get out
of the Union.
Respondent called employee James H. Whaley, who
testified that by mid-October 1979 a majority of the em-
ployees "had insinuated to me that they didn't feel like
they wanted the Machinists Local 555 to represent us
any further is the way I understood it." Based on Wha-
ley's understanding of the insinuation of his fellow em-
ployees, he stated he contacted the secretary-treasurer of
Local 555, W. A. Johnson, and asked Johnson for the
necessary paperwork for individuals to withdraw from
the Union. Whaley told Johnson, "I just told him that
the majority of the men-the big majority of them-
wanted to get withdrawal cards so they wouldn't owe
any further union dues." Whaley testified he received the
applications for withdrawal from the secretary-treasurer
of the Union around November 10, 1979, and, when em-
ployees spoke up at the November 15, 1979, meeting that
they did not care about remaining in Local 555, this was
the first time he informed the employees he already had
applications for withdrawal cards in his possession.
Whaley testified that after Sydes and the other manage-
ment representatives left the room where the meeting
was, he placed the withdrawal application forms on the
table so that employees who desired could obtain them.
Respondent contends that as a result of the November
15 meeting it prepared and delivered on November 19,
1979, a letter to its service department employees.
In the November 19, 1979, letter, which was given to
the employees by their foremen, Respondent advised its
service department employees that a number of them had
asked how they might resign from the Union and that
the letter was Respondent's explanation of how it might
be accomplished. Respondent informed its employees,
among other things, "You can resign from the Union and
revoke your checkoff authorization at this time if you
wish to do so." Respondent further stated, "The decision
is yours to make. Landmark International simply wanted
to be sure that you know about, and understand, your
rights and privileges. Whether you resign from the
Union or remain a union member will not make any dif-
ference in your wages, benefits, or treatment by the
Company." Respondent then advised the employees that
one way to resign from the Union was to follow the
three-step procedure which it outlined in its letter. Re-
spondent informed the employees that, if they desired to
resign from the Union, they should date and sign two of
the three enclosed copies of a letter addressed both to
Respondent and the Union, and then mail those two
copies to Respondent and the Union by certified mail in
the enclosed envelopes, retaining the third copy of the
letter for their personal records. Respondent advised
them that the other way to resign from the Union was to
sign a union withdrawal slip and send a copy by certified
mail to Respondent and the Union. The letter attached to
Respondent's November 19, 1979, letter, which was ad-
dressed to both Respondent and the Union, stated:
Dear Sirs:
I am hereby notifying you that I revoke my author-
ization for deduction of union dues from my wages
and I hereby resign my membership in the Union.
Yours truly
Respondent contends that its letter of November 19,
1979, was written for the purpose of informing its em-
ployees of their legal rights. Respondent contends that its
letter was based on a like letter used in Perkins Machine
Company, 141 NLRB 697, 699-700 (1963). Respondent
also contends that the letter was factually and legally ac-
curate and was couched in terms as noncoercive as lan-
guage could make it. Respondent would further rely on
Cyclops Corporation, 216 NLRB 857, 858 (1975), which it
contends stands for the principle that an employer may
correctly inform employees of their legal rights whether
asked for or not, and that such information to employees
of their legal rights is entitled to at least as much protec-
tion under the Act as is the expression of views, argu-
ment, or opinion protected by Section 8(c).
Respondent contends that counsel for the General
Counsel's attempt to distinguish Perkins and Cyclops be-
cause they involved "contract escape" clauses is patently
specious and that an employer may inform employees of
their legal rights regardless of whether those rights are
statutory or contractual.
Counsel for the General Counsel contends that an em-
ployer unlawfully interferes with its employees' Section
7 rights when it attempts to induce employees to sign
statements withdrawing from or repudiating the union.
Counsel for the General Counsel relies on City Supply
Corporation, 217 NLRB 950, 953 (1975), and The Deutsch
Company, Electronic Components Division, 180 NLRB 8,
20 (1969), enfd. 445 F.2d 901 (9th Cir. 1971). Counsel for
1380
LANDMARK INTERNATIONAL TRUCKS, INC.
the General Counsel contends that Respondent, by de-
livering its November 19, 1979, letter to each service de-
partment employee, flagrantly violated Section 8(a)(l) of
the Act. Counsel for the General Counsel contends that
Respondent only paid lip service in its letter advising
employees that they may decide on their own whether to
resign from the Union. Counsel for the General Counsel
contends that the letter was clearly intended to induce
resignation. In support of such a contention, counsel for
the General Counsel states that Respondent gave explicit
instructions to employees on how to resign from the
Union, even going to the extent of printing enclosed res-
ignation letters and envelopes. Further, counsel for the
General Counsel contends that Respondent, by instruct-
ing its employees to send a copy of the signed letter of
resignation to Respondent as well as the Union, was en-
gaging in manifestly coercive conduct which constituted
nothing more than an attempt on the part of Respondent
to monitor which employees had acceded to its solicita-
tions to withdraw from the Union. Finally, counsel for
the General Counsel contends that Respondent did not in
fact have a request for assistance from any employee
with respect to resigning from the Union, but rather had
on its own interpreted comments of discontent with the
Union to constitute a request for assistance. Counsel for
the General Counsel contends that Respondent's reliance
on Perkins Machine Company, supra, is misplaced inas-
much as the collective-bargaining agreement in Perkins
provided an "escape period," and required that employ-
ees send a letter by registered mail to both the union and
the employer informing them of the employees' with-
drawal from the union. Counsel for the General Counsel
contends that in the instant case Respondent was not ap-
prising employees of any contractual rights or duties, but
rather was soliciting employees to withdraw from the
Union. Counsel for the General Counsel contends that
Respondent thus violated Section 8(a)(1) of the Act by
soliciting its employees to withdraw from the Union.
The Board adopted the Administrative Law Judge's
Decision in City Supply Corporation, Supra at 953, where-
in it stated:
It is well established that the lending of assistance
by an employer in an employee's withdrawal from a
union, or the suggestion of the means and manner
by which this can be accomplished, encourages and
assists employees in their withdrawal and thereby
interferes with, restrains, and coerces such employ-
ees in the exercise of their statutory right to retain
union membership and is in violation of Section
8(a)(1) of the Act.
I find that the efforts of Respondent in the instant case
constituted an inducement to employees to withdraw
from the Union and as such constituted unlawful interfer-
ence with employee rights in violation of Section 8(a)(I)
of the Act. The Deutsch Company, supra at 20. I have
concluded that such a finding is warranted inasmuch as
Respondent provided prepared withdrawal letters and
return envelopes to its employees with instructions that it
be informed of any action taken by the employees with
respect to withdrawing from the Union at a time when
there had been no outright request for assistance from
Respondent. Sydes testified on direct that in essence the
employees asked how they could get out of the Union;
however, on cross-examination he indicated he only in-
terpreted what the employees said to constitute a request
for assistance. I find that no real request for assistance
was ever made by any employee to Respondent such as
to justify Respondent's letter of instructions on how em-
ployees were to resign from the Union. In the instant
case the idea for giving assistance on withdrawal from
the Union originated with Respondent and as such the
unrequested advice to employees as to the mechanics of
revocation violated Section 8(a)(1) of the Act. The viola-
tive nature of the conduct of Respondent is further dem-
onstrated by the fact that Respondent requested it be
provided a copy of any resignation letter of any employ-
ee. In so doing, Respondent placed pressure on its em-
ployees to identify whether they had made a choice to
withdraw from the Union or not; such a choice is a pro-
tected right employees are privileged to keep to them-
selves. Gilbert International, Inc., 213 NLRB 538, 542
(1974); Hatteras Yachts, AMF Incorporated, 207 NLRB
1043, 1048 (1973); Berwick Forge & Fabricating Division,
Whittaker Corporation, 237 NLRB 337 (1978); and Cum-
berland Shoe Company, 160 NLRB 1256 (1966).
Assuming, arguendo, that a request for assistance had
been made of Respondent, its actions in the instant case
went beyond mere ministerial acts of assistance and were
an outright attempt to have or induce employees to with-
draw from the Union in violation of the Act. Cumber-
land Shoe Company, supra.
Respondent's reliance on Perkins Machine Company,
supra, and Cyclops Corporation, supra,2 is misplaced. In
the Perkins case there was in effect a collective-bargain-
ing agreement between the employer and the union
therein, which contract provided for maintenance of
membership and deduction of dues from wages of union
members, and further provided for a 15-day escape
period annually to allow employees to withdraw from
the union and revoke their checkoff authorizations. A
short period of time prior to the beginning of the 1962
escape period in Perkins the employer therein sent each
union member a letter apprising the union member of the
contract's escape period dates and provisions and notified
employees that those who wished to resign from the
Union could do so only during the period indicated or
they would have to wait for another year. In the Perkins
case the employer informed the employees that, if they
wanted to resign from the union, they should date and
sign two copies of an enclosed letter addressed to both
the employer and the union and mail them in the en-
closed envelopes. Further, the letter in Perkins apprised
the employees that the employer therein simply wanted
the employees to understand their rights and privileges
and was not urging them to either remain members of
the union or to resign from the union, and whatever de-
' The Administrative Law Judge in Cvcops Corporation, supra. held.
and the Board adopted his Decision, that there sas, no meaningful dis-
tinction hetween Cyclops and Perkins I shall, therefore. in discussing the
cases, deal primarily with the Perkins case
1381
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
termination they made would not affect their wages,
benefits, position, or treatment by the employer therein.
In the case before me, Respondent appears to have
done as it alleged it did; that is, follow the format and
pattern of the Perkins letter to the extent of even provid-
ing enclosed envelopes for the return of the letters.
However, the distinguishing factor between the instant
case and the Perkins case is that in the Perkins case re-
spondent was providing notification to the employees of
their contractual rights or duties as it pertained to with-
drawing from the union. In the instant case, Respondent
was not informing its employees of any contractual right
or duty concerning withdrawal from the Union. I there-
fore conclude that the instant case is clearly distinguish-
able as outlined above from the Perkins and Cyclops
cases. Additionally, Respondent, in the instant case,
without any contractual or other need to know, request-
ed employees to provide it a copy of any resignation
from the Union. Thus, Respondent was in a position not
only to know who did in fact respond and withdrew
from the Union, but to know which other employees had
not acted on its distributed information with respect to
withdrawing from the Union. The subtle pressures on
employees inherent in such situations are obvious. See,
for example, PPG Industries, Inc., Lexington Plant, Fiber
glass Division, 251 NLRB 1146, 1157 (1980). In summary,
I conclude and find that Respondent, by soliciting its em-
ployees to withdraw from the Union in its November 19,
1979, letter, violated Section 8(a)(l) of the Act.
G. Respondent's Withdrawal of Recognition From and
Refusal To Bargain With the Union
Respondent, by its president, Sydes, forwarded a letter
dated December 4, 1979, to Union Grand Lodge Repre-
sentative McClendon wherein he stated he was respond-
ing to the Union's request for recognition and bargaining
with respect to Respondent's service department employ-
ees. Respondent in its letter stated:
The majority of employees in the service center
have informed the Company that they have re-
signed their membership in the IAM. We under-
stand this to mean that the service center employees
no longer want to be represented by the IAM. For
this reason, Landmark believes that it cannot law-
fully recognize the IAM as the bargaining repre-
sentative for these employees or meet with you on
December 12, 1979, to discuss recognition and the
terms of a new contract.
Sydes testified he sent the above-described letter (G.C.
Exh. 8) to the Union after he had received signed letters
from 13 of the unit employees withdrawing from the
Union (Resp. Exhs. (a) through (m)). The letters Re-
spondent received were the ones attached to Respond-
ent's November 19, 1979, letter.3 Sydes stated that, after
he received 13 of the letters, he also conducted a meet-
ing with the service department employees to inform
them he had refused to recognize and bargain with the
Union and had canceled the December 12, 1979, sched-
uled meeting with the Union. Sydes testified he told the
:' A copy of the letters in question is set forth in full elsewhere ill this
Decision.
employees he was taking the action he had indicated
based on the signed letters he had received from the em-
ployees. Sydes testified that, prior to sending the Decem-
ber 4 letter to the Union and prior to informing the em-
ployees he was refusing to recognize and bargain with
the Union, he had not only received the 13 letters of em-
ployees' withdrawal from the Union, but he had also
been advised by employee Whaley that everyone had re-
signed from the Union.
Employee Whaley was called as a witness by Re-
spondent and testified with respect to fellow employees'
expressions to him of their discontent with the Union. I
credit employee Whaley's testimony notwithstanding the
fact that he at times appeared somewhat confused as to
specific dates. Whaley testified that by the middle of Oc-
tober 1979 a majority of the "men had insinuated to me
that they didn't feel like they wanted the Machinists
Local 555 to represent us any further is the way I under-
stood it." Whaley testified he informed the secretary-
treasurer of the Union, "I just told him that the majority
of the men-the big majority of them-wanted to get
withdrawal cards so they wouldn't owe any further
union dues." Whaley testified he received applications
for withdrawal from the Union from the secretary of the
Union. On November 15, 1979, he provided the applica-
tions for withdrawal from the Union to any employees
who desired them. Whaley testified he would guess,
"[W]ell, I'd say at least 97 or 98 percent of them re-
ceived them [withdrawal cards]. There isn't more than
one or two that I know of at all that I'd be in any doubt
of." Whaley testified he told Sydes that practically ev-
eryone in the service department had gotten a withdraw-
al from the Union. I am persuaded Whaley told Sydes
this information even though Whaley was somewhat
confused as to when he told Sydes. Whaley stated, "I
think-I believe we had the third meeting and something
was said; and I verified that they had practically all-as
far as I knew, they'd all got out of the Union. They'd
got their honorary withdrawal cards." There is a real
question, in my opinion, that there ever was a third
meeting. However, I do not find this to destract from
Whaley's overall credibility, and I conclude that at some
point Whaley informed Sydes that "as far as [he] knew"
practically all of the employees had gotten out of the
Union. Whaley placed the alleged third meeting as "it
seems to me like it was maybe two or three months after
that second meeting."
Respondent contends that when it declined to recog-
nize and bargain with the Union on December 4, 1979, it
was legally justified in doing so because it had a good-
faith doubt as to the Union's majority status. Respondent
in its brief stated, "In fact, we believe it can be said that
the Union simply did not represent a majority of the unit
employees as of December 4, 1979." Respondent con-
tends that, when 13 of its 20 unit employees resigned
from the Union and revoked their dues checkoff in re-
sponse to Respondent's Perkins letter, this action alone
constituted a sufficient basis for doubting the Union's
continued majority status. However, Respondent con-
tends it did not rely solely on the written letters in its
doubt of the Union's continued majority status, but it
1382
LANDMARK INTERNATIONAL TRUCKS. INC.
also relied on the employees' comments at the November
15, 1979, meeting with respect to the Union, as well as
the testimony of employee Whaley that virtually every
bargaining unit employee had withdrawn from member-
ship in the Union. Respondent contends that any one of
the above factors considered alone or in combination
constituted a sufficient basis for its doubting the Union's
majority status. Respondent further contends that a dra-
matic decline in union membership either through resig-
nations, revocations of dues checkoff, or signing cards or
petitions for decertification elections are events upon
which an employer can base its good-faith doubt of a
continuing majority status. Finally, Respondent contends
it rebutted the presumption of a continuing majority
status and that in doing so the burden shifted to counsel
for the General Counsel to come forward with evidence
showing that the Union continued to represent a major-
ity of its employees, and Respondent contends that coun-
sel for the General Counsel failed to sustain its burden in
that respect.
Counsel for the General Counsel contends that Re-
spondent failed to establish that the Union had in fact
lost majority support at the time it withdrew recognition
from and refused to bargain with the Union. Counsel for
the General Counsel contends that Respondent may not
rely on the letters it received from its employees (Resp.
Exhs. I(a) through (m)) to show an actual loss of major-
ity support as Respondent had unlawfully solicited the
letters of resignation. Counsel for the General Counsel
contends that, even if the letters had not been unlawfully
solicited, they would not show a loss of majority support
inasmuch as resignation from a union, particularly in a
right-to-work State, does not demonstrate that employees
no longer wish to be repesented by a union. Counsel for
the General Counsel further contends that Respondent
may not rely on the alleged statements of two employees
at the November 15 meeting that they wanted to get out
of the Union as any proof of any loss of majority status.
Further, counsel for the General Counsel argues that Re-
spondent may not rely on the testimony of employee
Whaley that a majority of the employees had insinuated
to him that they did not desire the Union to represent
them inasmuch as Whaley testified that they only wanted
to withdraw from the Union in order to avoid paying
dues. Counsel for the General Counsel contends that
Sydes did not rely on employee Whaley's statement that
everyone in the service department had resigned from
the Union inasmuch as he had stated the contrary in a
pre-trial affidavit. Finally, counsel for the General Coun-
sel would contend that, even assuming that Sydes did
rely on Whaley's statement, such reliance would not jus-
tify Respondent's refusal to bargain inasmuch as Re-
spondent could not lawfully refuse to bargain based
merely on one employee's statement that other employ-
ees had resigned from the Union. Thus, counsel for the
General Counsel contends that Respondent unlawfully
withdrew recognition from and refused to bargain with
the Union at a time when Respondent did not have proof
either that the Union had in fact lost majority support or
that Respondent had a good-faith doubt of a loss of ma-
jority status, and as such its withdrawing recognition
from and refusing to bargain with the Union violated
Section 8(a)(5) of the Act.
As indicated elsewhere in this Decision, the Board has
held that, where an employing industry remains the
same, a predecessor's obligation to deal with the Union
which represents its employees devolves on a successor.
This principle applies whether the Union's majority
status with respect to the predecessor is established by
the presumption raised either by certification or by the
existence of an unexpired collective-bargaining agree-
ment, as in the instant case. Roosevelt Walker, d/b/a B &
W Maintenance Service, 203 NLRB 657 (1973); Barrington
Plaza and Tragniew, Inc., supra. It is presumed that a
union retains its majority status in a unit established by a
collective-bargaining agreement even after the expiration
of that agreement. See Automated Business Systems, et al.,
205 NLRB 532 (1973). The presumption applies not only
in a situation where the employer charged with a refusal
to bargain is itself a party to the preexisting contract, but
also to a successorship situation. Raymond Convalescent
Hospital, Inc., supra. Such a presumption is normally re-
buttable by competent evidence that the union no longer
commands majority status. Terrell Machine Company, 173
NLRB 1480 (1969), enfd. 427 F.2d 1088 (4th Cir. 1970),
cert. denied 398 U.S. 929. The burden of rebutting the
presumption rests on the party who would do so.
On the status of this record in the instant case, Re-
spondent has not established that the Union had in fact
lost majority status at the time it withdrew recognition
from and refused to bargain with the Union. Therefore,
if Respondent's actions be lawful under the Act, it must
need have established that it had a good-faith doubt of
the Union's continued majority status based on objective
considerations in a context free of unfair labor practices.
To determine if Respondent has met its burden, I shall
examine the evidence on which it relies to establish its
good-faith doubt of the continued majority status of the
Union.
Respondent contends it relied, at least in part, on the
reply letters it received from its Perkins letters to support
its withdrawal of recognition from and refusal to bargain
with the Union. Respondent may not rely on the re-
sponses to its Perkins letters (Resp. Exhs. I(a) through
(m)) inasmuch as I have concluded elsewhere in this De-
cision that Respondent unlawfully solicited those letters
of resignation. The letters are therefore invalid indicators
of a loss of majority status by the Union. Assuming, ar-
guendo, the letters had been lawfully solicited, they
would not demonstrate a loss of majority support suffi-
cient to warrant Respondent's withdrawal of recognition
from and refusal to bargain with the Union. As the
Board held in Thomas Industries, Inc., 255 NLRB 339
(1981), "[I]t is well established that a union need not
have majority support in terms of membership dues
checkoff in order to enjoy the presumption of continued
majority status."
The statements, by two employees allegedly made to
Sydes at the November 15, 1979, meeting he conducted
with his employees, are insufficient for Respondent to
form a basis that a majority of its employees no longer
desired to be represented by the Union. Expressions of
1383
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disenchantment with the Union and a disinclination to be
members of or pay dues to the Union fall short of a clear
rejection of the Union, even by the two employees to
whom such comments were attributed.
Respondent would also rely on information provided
to it by employee Whaley that everyone in the service
department had resigned from the Union. I conclude and
find that Respondent may not rely on such information
inasmuch as the reported assertions by an employee
about other employees' expressions of union sentiment
are nothing more than pure hearsay. See Roza Watch
Corp., 249 NLRB 284, 287 (1980); see also Thomas Indus-
tries, Inc., supra at fn. 4. There was no showing on this
record that Respondent was informed that a majority of
the unit employees had individually told Sydes that they
no longer wanted the Union to represent them. There-
fore, I find unpersuasive Respondent's contention that
such information could form the basis of a good-faith
doubt of the Union's continued majority status.
Thus, I conclude and find that none of the factors on
which Respondent relied provided an objective basis on
which Respondent could predicate a reasonable doubt of
the Union's continued majority status. Nor do these fac-
tors have a cumulative effect which would impel a con-
trary conclusion. Therefore, I conclude and find that Re-
spondent has failed to establish either that as of Decem-
ber 4, 1979, the Union did not in fact enjoy a majority
status or that Respondent had reasonable grounds on that
date for a good-faith belief that the Union had lost its
majority status. Accordingly, I find that Respondent was
not justified in its refusal to bargain with the Union on
and after December 4, 1979, and that its refusal violated
Section 8(a)(5) and (1) of the Act.
H. Summary
I find that Respondent is a successor employer to Har-
vester. I further find that the Union was the exclusive
majority representative of the unit of service department
employees as more specifically described elsewhere in
this Decision at the time Respondent took over and as-
sumed full control of the operations of Harvester and at
all times thereafter. I also find that Respondent's conduct
on November 19, 1979, in soliciting employees to with-
draw from membership in the Union restrained and co-
erced them in the exercise of their rights guaranteed by
Section 7 of the Act and as such violated Section 8(a)(l)
of the Act. I further find that Respondent's failure and
refusal to bargain with the Union on and after December
4, 1979, violated Section 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth above occurring
in connection with its operations described above have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
CONCLUSIONS OF LAW
I. Landmark International Trucks, Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Landmark International Trucks, Inc., was a succes-
sor employer to International Harvester Company at its
Knoxville, Tennessee, facility on and after November 1,
1979.
4. All mechanics, helpers, and apprentices employed
by Respondent at its Knoxville, Tennessee, Motor Truck
Service Station, excluding the foremen, manager, clerical
employees, supervisors as defined in the Act, and all
other employees, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
5. At all times since November 1, 1979, the Union has
been the exclusive bargaining representative of all em-
ployees in the aforesaid appropriate bargaining unit
within the meaning of Section 9(a) of the Act.
6. By soliciting its employees to withdraw from mem-
bership in the Union on or about November 19, 1979,
Respondent interfered with, restrained, and coerced em-
ployees in the exercise of rights guaranteed by Section 7
of the Act, and thereby engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
7. By refusing to recognize or bargain with the Union
at all times on and after December 4, 1979, with respect
to rates of pay, wages, hours of employment, and other
terms and conditions of employment for the employees
in the appropriate unit described above, Respondent en-
gaged in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has violated the Act in
certain respects, I shall recommend that Respondent be
required to cease and desist therefrom. Affirmatively,
Respondent will be required to recognize and, upon re-
quest, bargain with the Union and to post an appropriate
notice.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 4
The Respondent, Landmark International Trucks, Inc.,
Knoxville, Tennessee, its officers, agents, successors, and
assigns, shall:
I. Cease and desist from:
In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided by
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions. and Order, and all objections thereto
shall be deemed waived for all purposes.
1384
LANDMARK INTERNATIONAL TRUCKS. INC.
(a) Refusing to recognize and bargain collectively with
the Union as the exclusive bargaining representative of
its employees in the following appropriate unit:
All mechanics, helpers and apprentices employed
by Harvester at its Knoxville, Tennessee, Motor
Truck Service Station; excluding the foremen, man-
ager, clerical employees, supervisors as defined in
the Act, and all other employees.
(b) Soliciting its employees to withdraw from member-
ship in the Union.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
Section 7 rights.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Recognize and, upon request, bargain collectively
with Local Lodge 555 of the International Association of
Machinists and Aerospace Workers, AFL-CIO, as the
exclusive representative of all of the employees in the ap-
propriate unit described above with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment, and, if an understanding is
reached, embody such understanding in a signed agree-
ment.
(b) Post at its Knoxville, Tennessee, facility copies of
the attached notice marked "Appendix. " s Copies of said
notice, on forms provided by the Regional Director for
Region 10, after being duly signed by Respondent's rep-
resentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
(c) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
1385