Ric's Best Auto Painting

National Labor Relations Board - Board Decisions

Apr 8, 1980

248 N.L.R.B. 1028 (N.L.R.B. 1980)

1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Richard Aguilar, d/b/a Ric's Best Auto Painting
and International Association of Machinists and
Aerospace Workers, AFL-CIO, District Lodge
No. 190, Local Lodge No. 2182. Case 20-CA-
1429
April 8, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On November 28, 1979, Administrative Law
Judge Roger B. Holmes issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and the
General Counsel filed limited cross-exceptions and
a brief in support thereof and in response to Re-
spondent's exceptions.
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
We note that no exceptions have been taken to the Administrative
Law Judge's findings that Respondent violated Sec. 8(a)(1) of the Act by
telling employees that Respondent was going to operate his Sacramento
facility on a nonunion basis and was hiring nonunion employees, and Sec.
8(a)(1) and (3) of the Act by refusing to hire Ronald S. Royal and
Charles Rufus Sewell, Jr., because they were union members. In agreeing
with the Administrative Law Judge that Respondent violated Sec. 8(a)(5)
of the Act, we note that the 8(a)(1) and 8(a)(3) violations committed by
Respondent are of a character which would especially preclude a finding
that Respondent's doubt as to the majority status of the Union was based
on objective considerations. Servomation, Inc., 235 NLRB 975 (1978)
Respondent excepts to the finding that he is obligated to recognize and
bargain with the Union as the successor employer, contending that it has
expanded the unit from three to seven employees. We find no merit in
this exception, as the Administrative Law Judge found that Respondent
admitted at the hearing that he has operated his facility as a successor
employer, employing the same supervisors, using the same equipment and
production techniques, and selling the same services to the same custom-
ers in the same geographic area. In addition, we find that Respondent has
a successor employer's bargaining obligations based on his initial employ-
ee complement which included a majority of the predecessor's employ-
ees.
The Administrative Law Judge apparently found that predecesser em-
ployer Best Auto Painting had only three employees in the bargaining
unit represented by the Union, whereas it is clear from the record that six
employees performed the same bargaining unit work covered by the col-
lective-bargaining agreement between Best and the Union. We find that
the following employees of Best were members of that unit: Ronald S.
Royal, Charles Sewell, Jr., Walter Capaul, Patrick Cornick, Thomas
Gonzales, and Ricardo Lozaya. Moreover, of these six employees who
had performed unit work at Best, Respondent hired four, and, as we have
found that he unlawfully refused to hire two more, the majority status of
the Union is firmly established. Potter's Drug Enterprises, Inc., d/b/a Pot-
ter's Chalet Drug and Potter's Westpark Drug, 233 NLRB 15, 20 (19177). It
is irrelevant that only Royal, Sewell, and Capaul were union members in
good standing, as membership may not be equated with a lack of support
for the Union. Merchants Home Delivery Service, Incorporated, 230 NLRB
290, 295 (1977). Therefore, we conclude that for purposes of determining
successorship, six of Respondent's seven employees had been employed
by predecessor Best.
248 NLRB No. 130
Judge and to adopt his recommended Order, as
modified herein.2
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,
Richard Aguilar, d/b/a Ric's Best Auto Painting,
Sacramento, California, his agents, successors, and
assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Substitute the following for paragraph 2(c):
"(c) Restore the status quo ante which existed
prior to the implementation of the unilateral
changes made by Respondent with regard to the
rates of pay, wages, hours, and other terms and
conditions of employment of the employees in the
unit previously described above, and reimburse the
employees for any monetary losses they may have
suffered as a result of Respondent's unilateral
changes, with interest thereon to be computed in
the manner prescribed in Florida Steel Corporation,
231 NLRB 651 (1977) (see, generally, Isis Plumbing
& Heating Co., 138 NLRB 716 (1962)."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I We shall modify the Administrative Law Judge's recommended
Order to include interest on any moneys reimbursable to employees as a
result of Respondent's unlawful unilateral changes.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
I WILL NOT tell employees that I am going
to operate the Sacramento facility on a non-
union basis and hire nonunion employees.
I WILL NOT refuse to hire employees be-
cause they are members of International Asso-
ciation of Machinists and Aerospace Workers,
AFL--CIO, District Lodge No. 190, Local
Lodge No. 2182, or any other labor organiza-
tion.
I WILL NOT make unilateral changes, with-
out notice to or bargaining with the Union, in
the rates of pay, wages, hours, and other terms
and conditions of employment of the employ-
ees in the unit described below. The appropri-
ate unit is:
All employees employed by the Employer
at the Sacramento, California, facility, ex-
RIC'S BEST AUTO PAINTING 1029
cluding detailers, janitors, pickup and deliv-
ery employees, office clerical employees,
salesmen, guards and supervisors as defined
in the Act.
I WILL NOT withdraw recognition from the
Union, and fail and refuse to bargain with the
Union, as the exclusive collective-bargaining
representative of the employees in the unit de-
scribed above.
I WILL NOT in any like or related manner in-
terfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the National Labor Relations Act,
as amended.
I WILL offer employment to Ronald S.
Royal and Charles Rufus Sewell, Jr., without
the loss of their seniority, or other rights and
privileges from September 18, 1978.
I WILL pay to Ronald S. Royal and Charles
Rufus Sewell, Jr., the amount of their loss of
earnings, with appropriate interest on such
moneys, which resulted from the refusal to
hire them.
I WILL restore the status quo ante which ex-
isted prior to the implementation of the unilat-
eral changes, and I wlLL reimburse the em-
ployees for the losses to them which resulted
from the unilateral changes.
I WILL, upon request, recognize and bargain
collectively with the Union as the exclusive
collective-bargaining representative of employ-
ees in the unit described above, and I WILL
embody in a signed agreement any understand-
ing which may be reached.
RICHARD AGUILAR, D/B/A RIC's
BEST AUTO PAINTING
DECISION
STATEMENT OF THE CASE
ROGER B. HOI.MES, Administrative Law Judge: The
original unfair labor practice charge in this proceeding
was filed on October 5, 1978, by International Associ-
ation of Machinists and Aerospace Workers, AFL-CIO,
District Lodge No. 190, Local Lodge No. 2182, herein
called the Union. The first amended unfair labor practice
charge in this case was filed on October 27, 1978, by the
Union. The second amended unfair labor practice charge
in this case was filed on December 21, 1978, by the
Union. The third amended unfair labor practice charge
in this case was filed on December 22, 1978, by the
Union.
The Acting Regional Director of Region 20 of the Na-
tional Labor Relations Board, herein called the Board,
who was acting on behalf of the General Counsel of the
Board, issued on December 29, 1978, a complaint and
notice of hearing against Richard Aguilar, d/b/a Ric's
Best Auto Painting, herein called the Respondent.
The General Counsel's complaint alleges that the Re-
spondent has engaged in unfair labor practices within the
meaning of Section 8(a)(1), (3), and (5) of the National
Labor Relations Act, as amended, herein called the Act.
Specifically, the General Counsel alleges in paragraphs 6,
7, and 10 of his complaint the following:
6. Since on or about September 15, 1978, and
continuing to date, Respondent, through its officers,
agents, and representatives, has interfered with, re-
strained, and coerced its employees in the exercise
of their rights guaranteed in Section 7 of the Act by
certain acts and conduct, including the following:
(a) On or about September 15, 1978, Respon-
dent, by Aguilar, at Respondent's Sacramento,
California, facility, told individual job applicants
that Respondent would run its facilities as a non-
union operation in order to demonstrate to them
the futility of supporting the Union.
(b) On or about September 15, 1978, Respon-
dent, by Aguilar, at Respondent's Sacramento,
California, facility, told job applicants that Re-
spondent would not hire Union members in order
to demonstrate to them the futility of supporting
the Union.
7. Since on or about September 15, 1978, and
continuing to date, Respondent has refused, and
continues to refuse, to hire the following named
former employees of Best in order to avoid its duty
to bargain with the Union, and because of said em-
ployees' membership in or activities on behalf of the
Union and/or because they engaged in other pro-
tected concerted activities: (a) Ronald Royal (b)
Charles Sewell.
10. (a) Since on or about September 15, 1978, Re-
spondent has made numerous unilateral changes in
the rates of pay, wages, hours of employment, and
other terms and conditions of employment of em-
ployees in the unit described above in subparagraph
8(a) without notification to, or consultation with,
the Union.
10. (b) Commencing on or about September 15,
1978, Respondent has refused, and continues to
refuse, to bargain collectively with the Union and
has withdrawn recognition from the Union as the
exclusive collective-bargaining representative of Re-
spondent's employees in the unit described above in
subparagraph 8(a).
The Respondent filed an answer to the General Coun-
sel's complaint and denied the commission of the alleged
unfair labor practices. Both the General Counsel's com-
plaint and the Respondent's answer were amended on
the first day of the hearing.
The hearing was held before me on May 10 and 11,
1979, at Sacramento, California. The time for filing briefs
was extended to July 16, 1979. Briefs have been received
RIC'S BEST AUTO PAINTING
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
both from the General Counsel and from the Respon-
dent.
FINDINGS OF FACT
I. THE BUSINESS OPERATIONS OF THE PREDECESSOR
EMPLOYER AND THE SUCCESSOR EMPLOYER
The predecessor employer is Best Auto Painting, Inc.,
herein called Best. The predecessor employer was owned
and operated by Ralph Magdaleno.
Best was engaged in the retail and commercial paint-
ing of automobiles at several facilities. One of those fa-
cilities was located in Sacramento, California, and one of
those facilities was located in Stockton, California. Both
the Sacramento and the Stockton facilities of Best were
part of the agreement of sale between Best and Richard
Aguilar. (See G.C. Exh. 11.)
During the calendar year preceding the issuance of the
General Counsel's complaint, Best, in the course and
conduct of its business operations at Sacramento and
Stockton, performed services valued in excess of $50,000
for customers located within the State of California.
Each of those customers met the applicable Board stan-
dard for the assertion of jurisdiction on a direct inflow
or direct outflow basis. During the same time period,
Best received gross revenues in excess of $500,000, and
Best also purchased and received goods and materials
valued in excess of $5,000 which originated from sources
located outside the State of California.
The last day of business conducted by Best at its Sac-
ramento facility was September 15, 1978.
The successor employer is the Respondent, which is a
sole proprietorship owned and operated by Richard
Aguilar.
On or about September 15, 1978, the Respondent pur-
chased Best's facilities at Sacramento and Stockton and
also purchased most of its equipment at those locations.
Since that time, the Respondent, as a successor employ-
er, has controlled and operated the Sacramento facility
employing most of the same supervisors, using the same
equipment, and selling the same services to the same cus-
tomers in the same geographical area, as Best had done.
The Respondent's first day of business at the Sacra-
mento location was September 18, 1978.
In light of the Respondent's operations at the time of
the issuance of the General Counsel's complaint, and
those operations of Best previously described, it was ad-
mitted in the pleadings that the Respondent, at all times
material herein, has been an employer engaged in com-
merce and in operations affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
Upon the foregoing facts, which were either admitted
to be true in the pleadings or stipulated as facts at the
hearing, I find that the Respondent has been, at all times
material herein, an employer engaged in commerce and
in a business affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It was admitted in the pleadings, as amended at the
hearing, that the Union has been, at all times material
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act. Based upon the pleadings, and the
entire record in this case, I find that fact to be so.
III. THE UNFAIR LABOR PRACTICES
A. The Witnesses
In alphabetical order by their last names, the following
12 persons appeared as witnesses at the hearing in this
proceeding:
Richard Aguilar is the Respondent in this proceeding.
Previously, Aguilar held the position of the general man-
ager at Best.
Stephen Browner was an employee of Draper's Body
Shop at the time of the hearing.
Walter Frank Capaul worked as a body and fender
man for Best from late 1974 or early 1975 through Sep-
tember 15, 1978. He worked for the Respondent as a
body man from September 18, 1978, until early Decem-
ber 1978.
Patrick Howard Cornick was working as a painter for
the Respondent at the time of the hearing.
Harry Lee Dalton has been the assistant manager of the
Respondent since September 18, 1978. Previously,
Dalton had been employed in that same position by Best
at its Sacramento facility.
Carley A. Helton was employed at the time of the hear-
ing as a body man by Miracle Auto Painting in Dublin,
California. Previously, Helton had worked for about 4
months from October 1977 through January 1978 for
Best. Helton was hired by Aguilar at Best as a "trouble-
shooter" and also to help out with sanding, masking,
painting, and trying to get the production out.
Huntley Hennessy has been a business representative of
the Union for over 3 years.
Gary Ocheltree has been the assistant manager at the
Respondent's Sacramento facility since January 2, 1979.
Ronald S. Royal is one of the two alleged discrimina-
tees in this proceeding.
James T. Rustad is the manager of the Respondent's
Sacramento facility. Previously, Rustad had worked for
Best in several positions, including being the shop man-
ager of the Sacramento operation.
Charlers Rufus Sewell, Jr., is one of the two alleged
discriminatees in this case.
E. Wayne Wheeler has held the position of area direc-
tor of the Union for the past 9-1/2 years.
B. Credibility Resolutions
There is a direct conflict between the testimony given
by Helton and the testimony given by Royal. According
to Helton's version, Royal admitted to Helton in Novem-
ber 1977, while Helton was employed primarily as a
"troubleshooter" at Best, that Royal was purposely sabo-
taging the paint jobs on customers' cars which he paint-
ed. According to Helton, Royal informed him that he
was doing so because, "I don't get along with the fel-
lows in front and they're not going to go along with
me."
Royal specifically denied that he had deliberately sab-
otaged or "fouled up" the painting operation, while he
was employed at Best, or that he had ever told anyone
that he had done so.
-------
RIC'S BEST AUTO PAINTING 1031
Clearly, the foregoing presents a sharp conflict be-
tween Helton and Royal in their testimony at the hear-
ing. A decision must be made as to which version to
accept. It is noted that this is not simply a situation
where two persons observe an event taking place from
different perspectives, and it is not simply a situation
where two persons recall a long past event in different
terminology. Instead, the versions given by Helton and
Royal are mutually inconsistent and contradictory.
After considering the demeanor of the witnesses while
they were testifying, and after considering the criteria set
forth by the Board in Northridge Knitting Mills, Inc., 223
NLRB 230, 235 (1976), I have decided to credit the ver-
sion given by Royal. In other respects, I also found
Royal to be a reliable witness who gave credible testimo-
ny on other matters. After considering the foregoing cri-
teria, I have accepted his testimony on this matter also.
By accepting Royal's testimony, it necessarily means that
I have not credited the conflicting account related by
Helton. The nature of the direct conflict between Hel-
ton's version and the credited testimony of Royal under-
mines confidence in the reliability and accuracy of the
remaining testimony offered by Helton at the hearing.
Accordingly, I have decided not to rely on other por-
tions of his account.
In weighing the credibility of Sewell's testimony, I
have given consideration to the matter brought out at
the hearing by the Respondent with regard to Sewell's
difficulty in purchasing a car during the spring of 1978.
While Sewell readily acknowledged during cross-exami-
nation that he had missed a couple of days at work be-
cause of trouble with his car and replacement parts, he
was somewhat reluctant to acknowledge a conversation
between the car dealer and Rustad about Sewell's atten-
dance at work. Nevertheless, when he was confronted
by the Respondent with his pretrial statement which he
had given to a Board agent, Sewell did acknowledge the
conversation related in his earlier affidavit. Thus,
Sewell's testimony did not change at the hearing from
that which he had given earlier in his affidavit, but his
reluctance to acknowledge that statement on the witness
stand has been considered. However, I do not find that
reluctance to be a basis for discrediting Sewell's testimo-
ny, since his testimony was otherwise believable. Ac-
cordingly, I have credited Sewell's testimony.
It was brought out at the hearing that Brower had
signed a statement with two other employees, and that
the date of the employees' meeting with Rustad was said
to have occurred in February 1978. However, Brower
explained on the witness stand that he had corrected the
date in his affidavit which was given 5 days after the
statement. The date given in his affidavit was March 15,
1978. In these circumstances, I do not view the forego-
ing as a basis for not accepting Brower's testimony given
at the hearing.
In evaluating the credibility of Capaul in giving his
testimony at the hearing, I have given consideration to
the fact that Capaul considers the Respondent's manager,
Rustad, to be his friend. Capaul explained at the hearing
that Rustad had come to Capaul's house for a barbecue
and parties. I have also given consideration to the cir-
cumstances under which Capaul's employment with the
Respondent ended in December 1978.
According to Capaul, he asked Assistant Manager
Dalton for a heat lamp. Dalton responded, "if you want
to get warm, work harder." As a result of that conversa-
tion, Capaul went to Aguilar and asked to be laid off
from work. Aguilar asked Capaul to think about it for a
while, which Capaul did. However, Capaul again asked
Aguilar if he could be laid off, and Aguilar agreed to do
so. Capaul testified with regard to his relationship with
Dalton, "I got along with Harry Dalton until he told me
to work harder, if I wanted to get warm."
Dalton also expressed his opinion that he more or less
got along with Capaul, except for one comment Dalton
made. Dalton testified during direct examination by the
Respondent's representative that his comment to Capaul
was, "Work a little faster and that was just before he
left. Other than that we more or less got along."
The Respondent brought out at the hearing that
Capaul did not give an affidavit to the Board agent until
after his employment with Respondent had ended. Nev-
ertheless, after weighing the foregoing matters developed
by the Respondent, I still find Capaul's testimony to be
credible.
In significant respects the testimony offered at the
hearing by Aguilar is in direct conflict with the testimo-
ny of several other witnesses whose accounts were found
to be credible. Specifically, Aguilar's testimony is in con-
flict with the testimony given by Browner, Capaul,
Royal, and Sewell. In particular, Aguilar's testimony
contradicts, in significant respects, the statements regard-
ing the Union, which were attributed to Aguilar, in his
conversations with the foregoing persons. Acceptance of
the testimony given by Brower, Capaul, Royal, and
Sewell necessarily means that the contrary versions
stated by Aguilar must not be accepted.
In addition, there was a discrepancy between the testi-
mony given at the hearing and earlier statements which
Aguilar had made in his pretrial affidavit regarding the
discussion of wages, working conditions, and fringe
benefits with persons on September 15, 1978. He was
confronted with the inconsistencies in his pretrial affida-
vit during his cross-examination by the counsel for the
General Counsel.
Furthermore, to a lesser extent, Aguilar's testimony is
not compatible with his manager's testimony with regard
to Rustad's statements made in February and March
1978 regarding the Union to the shop employees.
Especially considering the significant conflicts between
Aguilar and Brower, Capaul, Royal, and Sewell, I have
decided not to credit nor rely upon the testimony given
by Aguilar.
In evaluating the hearing credibility of the testimony
given by Rustad, I have given consideration to the fact
that a portion of the testimony, which Rustad gave at
the hearing is in conflict with a portion of his pretrial af-
fidavit which he had given earlier to Field Examiner
Paul McCarthy for Region 20 of the Board.
A portion of the affidavit given by Rustad was read
into the record. In addition, when Rustad was later
called to the witness stand at the hearing, he was con-
fronted during cross-examination by the counsel for the
RIC'S BEST AUTO PAINTING
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel with the statements Rustad had made in
his pretrial affidavit. His pretrial affidavit indicates that
former employee Lozoya had been hired and then termi-
nated for poor attendance and absenteeism on four occa-
sions while he was employed by Best. His pretrial affida-
vit further indicates that, notwithstanding those earlier
terminations, Lozoya was hired by the Respondent when
the Respondent commenced its operation of the business.
It is undisputed that Lozoya was terminated once again
in October 1978 for his poor attendance at work, and
that the Respondent never reemployed Lozoya after Oc-
tober 1978.
However, at the hearing, Rustad indicated that
Lozoya had been hired and fired only two times by Best
for poor attendance and absenteeism, rather than the four
times as indicated in his pretrial affidavit. Rustad's expla-
nation given at the hearing for the contradiction was not
persuasive nor convincing. Accordingly, I conclude that
Rustad's pretrial affidavit contains the more accurate and
reliable account of the number of times that Lozoya was
hired and fired by Best for absenteeism. Furthermore,
considering the fact that Rustad occupies the position of
the manager of the Respondent's Sacramento facility,
and the fact that his statements in his pretrial affidavit
are, in effect, admissions against the interest of the Re-
spondent's position in this case, I find that the statements
made by Rustad in his affidavit regarding Lozoya are
factual. Alvin J. Bart and Co., Inc., 236 NLRB 242
(1978).
C. Best's Contract With the Union and the Letter
Dated February 28, 1978, to the Union
A copy of the "Memorandum of Agreement" between
Best and the Union was introduced into evidence as
General Counsel's Exhibit 2. The collective-bargaining
agreement between Best and the Union was introduced
into evidence as General Counsel's Exhibit 3. That
agreement became effective October 1, 1975, and was re-
newed thereafter according to its terms. The parties stip-
ulated that the contract had not been reopened at any
time prior to September 1, 1978.
In section A of General Counsel's Exhibit 3, the fol-
lowing is provided:
Section I Recognition and Jurisdiction of Agreement
A. The Employer recognizes the Union as the
sole bargaining agency for all of their employees
except Clerical Workers, Salesmen and non-produc-
tive Foreman.
In Section 10B of General Counsel's Exhibit 3 pertain-
ing to "Minimum Wages," the following is stated:
Pickup and Delivery, detailer, Janitor and miscella-
neous help are not covered by this agreement, how-
ever, it is understood that if an opening occurs in
the above classifications, they shall be given first
preference for the job opening.
Introduced into evidence as General Counsel's Exhibit
6 was a copy of a letter dated February 28, 1978, from
Best and Miracle Auto Painting to the Union. The docu-
ment is a joint letter from the two companies to the
Union. Aguilar's name and signature appear on the docu-
ment as the vice president of Best. In pertinent part, the
letter stated:
Pursuant to our many previous conversations on
your taking some steps to see that the auto painting
and body shops in the Sacramento area are union-
ized. Please be advised that there are now four lo-
cations that do not belong to the Union. They are
Car-Coa, 2875 Howe Ave., Sullivan's, 3011 "Q" St.,
No. Highlands, Maaco, 3101 Orange Grove Ave.,
No. Highlands, and The Body Shop, 2444 Auburn
Blvd. We understand that the Body Shop is opening
a second location very soon in the South area.
We feel that although you have made many
promises to take some steps to see that these shops
do become Union members, that nothing is being
done.
Due to the fact that our Union Contract is up in
September, and negotiations will probably start in
June or July, we feel now is the time for you to
contact these shops and do something about this sit-
uation. If something isn't done by the time the con-
tract is due, we are sure there will be trouble nego-
tiating a new contract.
It is simply impossible for us to complete with
these shops as they are so capable of undercutting
our prices. It is also unfair to our Union employees
who lose hours to non-union people.
We hope you will review this situation at you
earliest convenience, and we certainly will look for-
ward to hearing from you.
D. The Meetings in February and March 1978 Among
Rustad and the Employees
Royal recalled that during the last part of Feburary or
the beginning of March 1978, Rustad held a meeting
with the employees of the shop. Royal estimated that
about 10 employees attended the meeting. Royal ac-
knowledged at the hearing that he could not recall exact-
ly what Rustad said at the meeting. However, he did
recall that "he said pretty soon they'd be getting rid of
the union." He further recalled that Rustad told them
that there would be new ownership of the Company
under Aguilar on April 1, 1978.
Sewell estimated that there were 8 to 10 employees
present at the meeting called by Rustad in March 1978.
According to Sewell, Rustad informed the employees
that Aguilar was going to buy the Company, and that
Aguilar was going to take over the Company. In addi-
tion, Rustad told them that there was no longer going to
be a union shop. Then various questions were asked re-
garding pay raises and benefits.
According to Capaul, the meeting between the em-
ployees in the shop and Rustad could have taken place
either in February or March 1978. He said that Rustad
called the meeting and told them that Aguilar was going
to buy the shop, and that when Aguilar did so, they
would not have a union. Thereupon, the employees
asked questions about their benefits and whether they
would stay the same. Rustad replied that they would
RIC'S BEST AUTO PAINTING 1033
have benefits and that vacations would stay the same. In
response to another question, Rustad advised the em-
ployees that they were thinking about getting a body
shop next door, which would help out with the problem
they were having with dirt. Rustad also assured them
that all of the employees who were satisfactory in their
work would stay on.
As a result of that meeting, Capaul subsequently asked
Rustad during the early part of the summer of 1978
when Aguilar was taking over. Rustad told Capaul that
he did not know whether Aguilar had obtained his loan
yet, and he did not know.
Brower said that Rustad told the employees at the
shop meeting that "they would be terminating the Union
at the end of the month." Questions were asked about
wages and benefits, and Rustad said that all employees
would be kept on as long as the employees were doing
their job. Rustad also stated that they were looking into
similar benefits as to what the employees were receiving
at the time.
During his direct examination by the Respondent's
representative, Rustad described in detail the purpose of
his meetings with employees in February and March
1978 and what took place:
Q. Would you please tell us what led up to that
meeting, who was present and what was said and
by whom?
A. Well, basically, I had held several meetings
throughout the year. I held quite a few in February
and March, probably four of five. Basically they all
covered the same thing. The reason for the meet-
ings was, to be honest with you, the competition in
the area, the other production paint shops that were
non-Union were killing us. They were paying lower
wages. They were paying less benefits, if any. The
shop morale was really bad; it affected the produc-
tion, it affected the quality. There were people in
the shop who just really did not like coming to
work in the morning. As a result attendance
dropped. People would rather not come to work.
We had really serious production problems. We
were losing money.
Q. So there was a purpose for the meetings?
A. Sure
Q. You were attempting to what, jack people up
or what?
A. Yeah, I was attempting to-at the time the
shop was in desperate straits. We weren't making
very much money if any at all. Ralph was really un-
happy with the operation of the shop. We had to do
something. I tried to have meetings to bring em-
ployees together so we could work as a coordinated
team, try and work out some of our problems. Just
to get things going smoothly so we could make
some money. There had been a discussion and
rumors around the shop about the sale of the shop
due to the performance. People were asking ques-
tions such as, "Are you going to close?" You know,
were we going to sell the shop. And these type of
questions. I tried to answer the question the best
that I could. I admitted to the fact that Richard and
Ralph had discussed the possibility of the sale of the
shop to Richard. Ralph was losing his shirt and he
was very unhappy at the time. I told them, you
know, it is a possibility that indeed Richard might
buy the shop. Hey, knowing Richard like I do, I
told them that there was a definite possibility that
he would terminate the Union contract, all right.
He would fight for lower wages and benefits equal
to at least what our competitors was doing. I told
them that in fact I had seen a letter that was written
to the Union to that effect, and that as far as I knew
there had been no answer and I really didn't know
what was going to happen, but that to the best of
my knowledge, all I wanted to do was get the shop
back to where it would make money and everybody
work together and keep them informed as best I
could.
Q. Okay. Is that about all that was said at the
meeting?
A. I'm sure that several people asked me about
benefits and in my opinion, of course, not knowing
what it would be, my opinion there would have to
be about the same if I was to stay or anybody else.
No unfair labor practice allegations are made with
regard to the statements by Rustad, but his acknowl-
edged statements have been considered as background
evidence pertaining to the matters which are placed in
issue by the pleadings.
E.Correspondence Between Best and the Union Prior
to the Sale
A copy of a letter dated July 27, 1978, from Aguilar to
the Union was introduced into evidence as General
Counsel's Exhibit 4. The letter was on the letterhead sta-
tionery of Best. In pertinent part, the letter stated:
A tentative date effective Sept. 4, 1978, change of
ownership of Best Auto Ptg. Inc., at 1400 Sproule
Ave., Sacramento, CA will take place.
This is per agreement between Rafael Magda-
leno, Pres. Best Auto Ptg. Inc., and Richard J.
Aguilar who is resigning his position as Vice Pres.-
Gen. Mgr. of Best Auto Ptg. Inc. Also in accor-
dance with this agreement, Richard J. Aguilar will
agree to purchase from Best Auto Ptg. Inc., the
Sacramento and Stockton facilities. Any questions
in regards to this change over concerning the union
agreement can be directed to me at 1400-Sproule
Ave., Sacramento, CA 95814, 447-6114. Thank you.
Introduced into evidence as General Counsel's Exhibit
5 was a copy of a letter dated August 23, 1978, from
Magdaleno to the Union. It also was on the letterhead
stationery of Best. The letter stated:
Best Auto Painting, Inc. hereby formally notifies
you it has reached an understanding in principle to
sell its Sacramento facility with an expected sales
closing date to occur on or about September 15,
1978. This is a further update based on Mr. Agui-
lar's July 27, 1978, letter to you.
RIC'S BEST AUTO PAINTING
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having checked with labor counsel, I have been
advised the next step for us to take is to negotiate
over the effects the closure will have on bargaining
unit employees. Based on our records, the employ-
ee's [sic] affected who are in the covered bargaining
unit are; bodymen Walter Capaul & Steve Brower,
painter Ronald Royal, and masker Charles Sewell.
We anticipate they will be permanently laid off on
or about September 15, 1978.
Please contact our labor counsel, Fred R. Long,
3350 Scott Blvd., Bldg. 24, Suite 2401, Santa Clara,
CA. 95051 (Phone (408)-249-9670) who is autho-
rized to act on our behalf regarding the aforemen-
tioned negotiations. If you decide to waive these ne-
gotiations it is our intention to pay each of the four
employees covered by our expired collective bar-
gaining agreement their pay through their final date
of employment, all accrued vacation, a letter to
them that they have been permanently laid off be-
cause of the sale of business through no fault of
theirs, and we will not contest their unemployment
compensation claims.
All further discussions, if any, on the matter
above should be directed to Fred Long and not me.
Thank you for you cooperation.
In response to the letters, which were introduced into
evidence as General Counsel's Exhibits 4 and 5, Wheeler
spoke with Magdaleno on August 31, 1978, by telephone,
and then Wheeler sent the following letter, which was
introduced into evidence as General Counsel's Exhibit 7,
to Magdaleno on that same date:
With reference to our telephone conversation this
date regarding the change of ownership of Best
Auto Painting Inc. in Sacramento.
This is to notify you that Mr. R. J. Aguilar is still
part owner of Best Auto Painting Inc. and that the
Company is bound by the current agreement Sec-
tion 28 Successor Clause, and Section 29.
In view of these two sections, should you lay off
or terminate these employees, you will be subject to
Unfair Labor Practice being filed against your
Company; Again we request that you do not lay
these people off, because the existing contract pre-
vails.
F. The Conversation Between Aguilar and Brower on
or about September 1, 1978
Brower worked as a bodyman and spot painter for
Best during the period from January 15, 1978, to Sep-
tember 1, 1978. Brower was a member of the Union.
About August 26, 1978, Brower decided to quit his
employment with Best.
On September 1, 1978, Brower had a conversation
with Aguilar in the body shop area. Just the two persons
were present during that conversation. During his direct
examination by the counsel for the General Counsel,
Brower testified:
Q. Please tell us what was said during that con-
versation by you, by Mr. Aguilar?
A. Mr. Aguilar confronted me and asked me why
I was quitting and I told him it was because of the
pay, that I didn't feel that I was receiving a high
enough wage for the work that I was doing. And
he aksed me-he told me that the reason they
couldn't afford to pay me a higher wage is that they
were paying a high wage to the sanders and mask-
ers because it was a Union shop, and that they
would be terminating the Union in another week.
He asked me what I would be doing and I told him
I would probably be working at home. He asked me
what I would be doing in regard to the Union and I
told him I would get a withdrawal card for the time
being.
G. The Conversation Between Aguilar and Capaul on
September 15, 1978
During the early part of September 1978 Rustad asked
Capaul if he would stay with Aguilar when Aguilar took
over the business for $13.75 an hour. Capaul replied that
he would think about it.
About a week later, Capaul met with Aguilar in Agui-
lar's office. Aguilar's secretary was also present. During
his direct examination by the counsel for the General
Counsel, Capaul testified:
Q. Can you tell us what Mr. Aguilar said to you
and what you said to him during that meeting?
A. I walked into the office. He handed me a
letter and said read it. I read it. I said, "Now what".
He said, "Did you consider what Jim Rustad had
asked me". And then I asked him, "Are my benefits
and vacation and health and welfare going to stay
the same?" He says yes, he was going to get some.
And I asked him what about the Union. He said the
Union will no longer be with us. And I says, "Well,
now what?" He said that he could hire-as long as
he hired all the non-Union employees back that he
could hire me back.
A copy of the notice addressed to all of the employees
of Best at the Stockton and Sacramento locations was in-
troduced into evidence as General Counsel's Exhibit 8.
The document is dated September 15, 1978. It stated, in
pertinent part, the following:
To: All employees of Best Auto Ptg. at the Stock-
ton and Sacramento locations.
From: Rafeal Magdaleno, Pres. Best Auto Ptg., Inc.
Subject: Termination of employment of all employ-
ees now presently working at the Stockton and Sac-
ramento locations. This notice is effective at the end
of the regular working day, Friday Sept. 15, 1978.
Best Auto Ptg. Inc. has finalized the sale of its
Stockton and Sacramento locations to Mr. Richard
J. Aguilar, formerly vice-president and Gen. Man-
ager of Best Auto Ptg. Mr. Aguilar will take over
ownership of these locations effective Sat. Sept. 16,
1978.
Best Auto Ptg. wishes to offer its appreciation to
all employees for their loyal and generous support
RICS BEST AUTO PAINTING 1035
during their employment with us. We also would
like to wish the best of luck to all of you in any of
your future employment or endeavor you may un-
dertake.
Please feel free to ask for any personal references
whenever if needed. Thank you.
H. The Conversation Between Aguilar and Royal on
September 15, 1978
On September 15, 1978, there was a conversation be-
tween Aguilar and Royal at the end of the workday in
Aguilar's office. Aguilar, his secretary, and Royal were
present.
Aguilar informed Royal, "We are now under new
ownership and this is no longer Best Auto Painting. It's
now Ric's Best Auto Painting, and this is the last day for
Best Auto Painting. We close up."
After Aguilar told Royal about the new ownership,
Aguilar said that there was "no longer a union shop.
And he really-he don't really need me anymore."
Aguilar handed to Royal a copy of a letter dated Sep-
tember 15, 1978, from Magdaleno to all of the Best em-
ployees at the Stockton and Sacramento locations. A
copy of that document was introduced into evidence as
General Counsel's Exhibit 8. (See sec. G of this Deci-
sion.)
After handing a copy of General Counsel's Exhibit 8
to Royal, Aguilar told Royal to read the document.
Royal did so. Then, Aguilar told Royal that. if there was
anything which Royal did not understand, he should
contact his union representative.
Aguilar also asked Royal about his plans. Aguilar told
Royal that, if he was looking for a job and needed a ref-
erence, Aguilar would help him and he would give
Royal a good reference.
In addition, Aguilar told Royal, "If I wanted to come
back with the same company or go to work, I'd have to
wait up to six months, go see my Union representative."
During their conversation on September 15, 1978,
Aguilar did not offer Royal a job, and Royal did not ask
him for a job.
I. The Employment Record of Royal While Employed
by Best
Royal was employed as a painter by Best during the
period from March 15, 1977, through September 15,
1978. On a typical day, Royal said that he averaged
painting eight or nine cars.
Royal became a member of the Union about 3 or 4
months after he began his employment with Best, and
Royal remained a union member thereafter.
Royal acknowledged at the hearing that Rustad had
talked with him "Several times" about Royal's being late
for work.
Royal said that he was sick at the time that he was
laid off from work in July 1978. Royal attributed his ill-
ness to the fact that, "I breathed too much paint." Royal
filed a greivance with the Union.
Among the greivances which were discussed in
August 1978 between Hennessy and Aguilar was a griev-
ance which pertained to Royal. According to Hennessy,
Royal did not want to work continuously in the paint
booth at the Respondent's facility. Royal felt that the air
in the paint booth was too heavy. Therefore, Royal
wanted to spot paint.
Hennessy said that the only discussion at that griev-
ance meeting with regard to Royal's attendance at work
concerned Royal's attendance during the I or 2 weeks
just prior to the grievance meeting. Hennessy said that
Royal had missed some days because Royal was sick,
and he was having trouble with coughing. Hennessy said
that Royal stated at the grievance meeting that Royal
could, in fact, do the job, and that Royal felt that he
could work every day if he did not have to be in the
paint booth constantly for 8 hours a day.
According to Hennessy, the agreement reached by the
parties at the grievance meeting regarding Royal was
that Aguilar would put Royal back to work, and that the
Company would try to give Royal as much relief out of
the paint booth as they could.
However, on the first day that Royal was supposed to
return to work for Best after that grievance meeting,
Royal did not do so. Hennessy said that Rustad tele-
phoned him and informed him that Royal was not at
work. Hennessy recalled that Rustad said that he did not
know whether Royal was sick, and Rustad asked Hen-
nessy to contact Royal and find out what was the matter.
According to Hennessy, Royal did not return to work
that day because he was sick.
Royal recalled that he stated at the grievance meeting
that he could do the job; that his productivity "would be
up to speed," and that his attendance would improve.
Royal said that it was on that basis that Aguilar put him
back to work.
Royal said that he was still sick at that time, but he
called in and advised the Company that he was sick. He
was told to come in whenever he could do so and that
things would be worked out.
At the hearing, Royal acknowledged that he was
having problems with dirt in the paint spray booth in
August 1978. However, Royal attributed his problem to
the damaged condition of the paint booth at that time.
A summary of the information set forth on numerous
timecards of Royal and Sewell for the period from Janu-
ary 9, 1978, to September 15, 1978, was introduced into
evidence as Respondent's Exhibit I(a). The timecards,
from which the summary was prepared, are contained in
Respondent's Exhibit l(b).
The summary reflects, among other things, the ab-
sences of both Royal and Sewell from work on the dates
specified; the times they were late in reporting to work;
their failure to use their timecards; their failure to go to
lunch, and the dates on which they left work. In view of
the importance of that exhibit to the Respondent's de-
fense to the General Counsel's allegations regarding
Royal and Sewell, a copy of that summary has been at-
tached hereto as Appendix A [omitted from publication].
Rustad gave his opinion of Royal's performance
during his direct examination by the Respondent's repre-
sentative:
Q. During that same time reference, January Ist,
1978, when you became manager of the Sacramento
shop, again and through September 15, 1978, what
RIC'S BEST AUTO PAINTING
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were those observations? If you can cite specifics,
please do.
A. Well, Ronnie once again was a very talented
painter. He had the ability to do the job. Most of
his jobs were fairly nice. I don't think he had any
more problem with his paint jobs than anybody else
did as far as appearance. He had some problem with
production; the number of cars he would paint each
day, whether or not that was his fault, I can't really
say. The real problem I had with Ronnie was basi-
cally attendance once again and absenteeism, a lot
of absenteeism. Ronnie was constantly sick or he
was constantly complaining about being sick in the
paint booth. He would come out of the paint booth
and want to go home because he was sick. He
would tell Harry that he wanted to go home be-
cause he was sick. He constantly-finally when he
came back from vacation some time in the end of
July or the first of August, I talked with Ronnie
and told him that I would try to find him an area, a
spot painting area, when he came out of the booth
and maybe put Tommy in the booth full-time. And
I have two painters, I have one in Tommy whom I
consider to be a fine production painter, and I have
one in Ronnie who was an equally fine production
painter, but uncapable of really painting the number
of cars I had because of his illness.
As indicated previously in section B of this Decision, I
have found to be factual the statements made by Rustad
in his pretrial affidavit regarding the number of times
that Lozoya was hired and then terminated for poor at-
tendance and absenteeism while he was employed by
Best. Notwithstanding Lozoya's record at Best, Rustad
said that he recommended to Aguilar that Lozoya be
hired for the Respondent's operation. Because of prom-
ises made by Lozoya to Rustad, Rustad explained at the
hearing, "I just felt that maybe his attitude had
changed." Nevertheless, Rustad acknowledged that he
had to terminate Lozoya about 30 to 40 days after his
employment by the Respondent.
In contrast to his recommendation to Aguilar regard-
ing the employment of Lozoya, Rustad did not recom-
mend the employment of Royal and Sewell by the Re-
spondent. Rustad cited as his reasons their attitude,
which included their tardiness and absenteeism.
In late August 1978, or early September 1978, Dalton
and Rustad talked about persons to be hired when Agui-
lar took over the business. At that time Dalton recom-
mended to Rustad that Royal, Sewell, and Lozoya not
be employed when Aguilar commenced operation of the
business. Dalton pointed out to Rustad that, with regard
to Royal and Sewell, there had been a lot of trouble with
their attendance and with their attitude. Concerning
Lozoya, Dalton testified during direct examination by
the Respondent's representative, "And Rick Lozoya, as
far as I was concerned, he'd show up one day and he'd
be gone the next day, so he wasn't, you know, he was
just off the list completely."
During his direct examination by the Respondent's
representative, Dalton also described an incident involv-
ing Royal's complaint concerning water on the floor,
which incident led to Royal's being fired by Dalton on
that occasion. However, after a discussion with the union
representative, Royal was reinstated. Dalton testified
during his direct examination by the Respondent's repre-
sentative:
Well, one instance that Bud Hennessy was in on,
we had water on the booth floor and Ron come in
kind of hot-headed, you know, cussing and jumping
up and down, telling me he wasn't going to work
there and he wasn't going to do this, you know.
And I explained the situation, you know, that we
had, with a bad roof and this and that. And we ex-
changed a few words and after a few words it was
a heated discussion. So I just told him, "You're
fired." At that time he told me I had no authority
to fire him and then I just told him, you know, to
call the Union. We talked to the Union. At that
time Bud Hennessy came into the shop and talked
to Ron, talked to me and we agreed that Ronnie
needed something to keep his feet dry so it was sug-
gested that maybe rubber boots, and they told me
to put Ronnie back to work. So that's what we did,
put him back to work.
Dalton said Thomas Fletcher was hired after Royal
had left, but that Fletcher only did painting work for the
Respondent for 3 weeks. Fletcher did not report for
work 1 day, and he did not call in for 2 days. When
Fletcher did appear at the Respondent's facility, Fletcher
merely asked for his check. Dalton said that he was
going to terminate Fletcher. He said that Flether had av-
eraged painting 8 to 12 cars a day.
Dalton considered the painters to occupy the most im-
portant position in the production process, and then the
maskers, sanders, and bodymen.
By the time of the hearing, Cornick had been perform-
ing painting work for the Respondent for approximately
3 to 4 months. Cornick stated that he averaged painting
10 to 12 cars a day. When he was asked as to whether he
had ever received any complaints on any of his paint
jobs, Cornick replied, "A few at first, but they're getting
a little better now. Managing to sell most of them."
J. The Conversation Between Aguilar and Sewell on
September 15, 1978
When Sewell spoke with Aguilar on September 15,
1978, Aguilar gave two checks to Sewell, and he handed
Sewell a copy of the notice which was introduced into
evidence as General Counsel's Exhibit 8.
Aguilar told Sewell that it had been nice working with
him. Aguilar stated that he was taking over the Compa-
ny, and that, if Sewell wanted to come back and work
for him, Sewell should talk to his manager, Rustad.
Aguilar also told Sewell that, "If I did come back to
work it would take six weeks or more depending on
what the Union might do." Aguilar said that, if Sewell
had any further question, Sewell should go talk to the
Union. Then, there was additional conversation between
the two persons. Sewell testified during cross-examina-
tion by the Respondent:
RIC'S BEST AUTO PAINTING 1037
. . . I told him as I was walking out the door, I
said, "Well, it was nice working with you and good
luck." And he said, "Well, if it wasn't for the Union
things would have worked out a lot smoother."
That was stated, then I walked out the door.
K. The Employment Record of Sewell While
Employed by Best
Sewell began working for Best in April 1977. His first
job for Best was as a detailer. About 3 months later,
Sewell became a sander. Then he did masking work for
Best. He continued thereafter to do some sanding work
and some masking work as needed. During the period
from August 1978 through the first half of September
1978, Sewell estimated that he performed 50 percent of
his worktime in masking and 30 percent of his worktime
in sanding. He also did a little paint work.
Sewell became a member of the Union about 2-1/2
months after he began working at Best, and he continued
to be a member of the Union thereafter.
Hennessy recalled speaking with Aguilar sometime in
1977 with regard to Sewell. Hennessy said that the con-
versation pertained to a reprimand letter, which had
been sent to Sewell by William Schmidt, who was the
manager at that time. According to Hennessy, the ques-
tion of Sewell's ability was resolved by the parties at that
meeting.
Rustad gave his opinion of Sewell's performance
during his direct examination by the Respondent's repre-
sentative as follows:
Q. Let's take the period when you came into the
Sacramento shop in January of 1978 through Sep-
tember 15th of 1978; what were your observations?
And if you can think of any specifics please advise
me what they might be.
A. I considered Chuck to be a really good
masker, okay. I considered Chuck to be probably
one of the finest maskers around. He didn't always
have the capability to do the number of cars that I
really wanted to do, but I could always find some-
body floating around the shop to give him a hand
to that. The only problems I really had with Chuck
was absenteeism and tardiness. I never had any per-
sonal conflicts with Chuck I don't think.
Q. When he had problems with absenteeism and
tardiness, what did that do by way of impact on
your production flow?
A. It was really tough. I had to take a man that
would normally help Chuck during the day and he
had to do it full-time. I might have to help. I would
have to be taken away from my estimates, I
couldn't spend time with the customers like I
should. Consequently, a lot of things in the shop
suffered just overall general shop performance
whenever anybody was gone.
His attitude was one of the factors which Dalton cited
at the hearing as being a criticism of Sewell. Dalton gave
as an example, Sewell's stating that he did not want to
perform masking work, but instead that Sewell wanted
to do other work. In addition, Dalton related an incident
which occurred about the end of the summer of 1978
when Sewell did not return to work when Dalton rang
the break bell. On that occasion, Sewell accused Dalton
of being prejudiced and of "picking on him." Dalton tes-
tified that his response to Sewell was, "I told him to go
and punch out if he had any problems." However,
Sewell used the shop telephone to call his union repre-
sentative on that occasion.
Dalton related another incident when Sewell came to
the Respondent's facility and told Dalton that he had to
work on his car. Dalton explained the importance of
Sewell's being present at work, but Sewell refused to go
to work and left. According to Dalton, Sewell returned
about 3 hours later.
In addition to his attitude, Dalton also cited Sewell's
work habits and his attendance.
L. The Respondent Commences Operations
A copy of the "Agreement of Sale" dated September
15, 1978, between Best and Aguilar was introduced into
evidence as General Counsel's Exhibit II.
General Counsel's Exhibit 12(a) is a payroll list of the
employees of Best at its Sacramento location for the
week ending on September 15, 1978. The names of the
employees which appear on that document are: Walter
Capaul, Patrick Cornick, Harry Dalton, Thomas Gonza-
las, Leticia Hernandez, Rea Lucia, Gary Ocheltree,
Dave Renfro, Ronald Royal, James Rustad, Charles
Sewell Jr., William Silva, Jr., George Vidra, and Ricar-
do Lozoya.
General Counsel's Exhibit 12(b) is a payroll list of the
employees of the Respondent during the week ending
September 22, 1978. The names of the employees on that
document are: Walter Capaul, Patrick Cornick, Harry
Dalton, Thomas Gonzalas, Leticia Hernandez, Rea
Lucia, Gary Ocheltree, Dave Renfro, James Rustad,
William Silva Jr., George Vidra, Ricardo Lozoya, Greg-
ory C. Gocher, and Thomas H. Fletcher.
Capaul was working as a body and fender man for
Best at the time that Best ceased operation of the Sacra-
mento facility. Capaul began working on September 18,
1978, for the Respondent as a bodyman. Capaul was a
union member from May 1977 until sometime in Decem-
ber 1978 when he obtained a withdrawal card from the
Union because he got a job in a nonunion shop.
Cornick had worked for Best on two occasions. He re-
turned to work for Best on August 1, 1978, and he con-
tinued to work for Best through September 15, 1978.
Cornick described his job classification as that of a de-
tailer/sander during that period of employment with
Best. He described detailing work as delivering cars;
moving cars around in the shop; pulling tape off of cars,
and cleaning up cars. In addition, Cornick estimated that
he spent about 50 percent of his time mostly sanding and
also performing some masking and painting work.
When the Respondent commenced operation of the
business, Cornick became a full-time sander, and he re-
ceived $1.50 raise in pay.
Cornick had been a union member during the earlier
portion of his employment with Best. A couple of
months prior to June 1978, Cornick was not paid up in
his union dues. Thereafter, he left the employment of
RIC'S BEST AUTO PAINTING
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Best for about 1-1/2 months until he was rehired by Best
on August 1, 1978. Cornick said that when he returned
to work for Best, he had not paid his union dues for
about 3-1/2 months. After his reemployment by Best,
Cornick said that he did not become a member of the
Union nor did he belong to the Union. With regard to
his feelings regarding employment by the Respondent in
a nonunion shop, the following took place during the
cross-examination of Cornick by the counsel for the
General Counsel:
Q. How did you feel when you first learned that
Ric's Best Auto was going to be a non-union shop?
A. Well, that day-
Q. I said how did you feel?
A. How did I feel? I didn't really care that much,
you know. As long as I was working and I had
medical benefits, it didn't matter.
Q. So you didn't care. That means you had no
preference. You would have been just as happy
either way?
A. Yes.
Q. When did you first learn that it would be a
non-union shop?
A. I guess that day when I came back to work,
they were picketing and they didn't have any more
Union people working there.
Q. So you had never heard before September
18th, it was going to be a non-union shop?
A. I heard rumors, you know, but nobody said
for sure yet that it was.
Q. Well, when you say you heard rumors, who
did you hear these rumors from?
A. I don't know. Everybody in the shop was
talking about it.
Of course, it is recognized that there is a time interval
of about 8 months between September 18, 1978, when
Cornick began working for the Respondent, and the time
of the hearing in this proceeding. That time factor re-
garding Cornick's feelings has been weighed in consider-
ing the testimony from him, which was developed by the
counsel for the General Counsel. Nevertheless, I find
from the foregoing that Cornick did not affirmatively
desire the Union to be his collective-bargaining represen-
tative as of September 18, 1978.
Ocheltree worked as a detailer for Best during the
period from around March 20, 1978, through September
15, 1978. He commenced working for the Respondent on
September 18, 1978, basically as a painter's helper or
backup man. He prepared the cars before the cars went
to the paint booth. He received a raise in pay when he
assumed that position. Subsequently, Ocheltree became
the assistant manager at the Respondent's Sacramento fa-
cility on January 2, 1979.
Ocheltree said that he never became a member of the
Union.
Sewell said that he observed Thomas Gonzalas about 9
or 10 times a day during the period from August 1, 1978,
through September 15, 1978. He said that Gonazalas
spent about 50 percent of his time masking, and that he
spent about 40 percent of his time sanding. One day
Sewell observed Gonzalas doing detail work.
According to Sewell, Gonzalas was not a member of
the Union.
Capaul also observed Thomas Gonzalas on the aver-
age of eight times a day during the period from August
1, 1978, through September 15, 1978. He said that Gon-
zalas was doing masking work and some hand sanding.
After the Respondent commenced operation, Capaul ob-
served Gonzalas doing taping or masking work.
Sewell said that he observed Rick Lozoya about 6 or 7
times a day during the period of August 1, 1978, through
September 15, 1978. He said that Lozoya was sanding
the majority of that time.
According to Sewell, Lozoya was not a member of
the Union.
Capaul estimated that he observed Ricardo Lozoya on
the average of eight times a day during the period from
August 1, 1978, through September 15, 1978, He said
that Lozoya did sanding work. After the Respondent
commenced operation of the business, Lozoya continued
to do sanding work.
Capaul observed on September 18, 1978, that William
Silva performed detail work for the Respondent.
Considering the foregoing matters and also the Re-
spondent's actions in not hiring Royal and Sewell, I find
that the evidence shows there was only one person in
the unit who was a member of the Union at the time the
Respondent commenced its operation of the business on
September 18, 1978. That person was Capaul.
However, in circumstances similar to those presented
in this case, the Board has decided that evidence of lack
of union membership on the part of unit employees is not
the equivalent of showing a lack of union support among
the unit employees. The Board and the Court holdings in
that regard will be discussed later in section N of this
Decision.
M. The Changes in Working Conditions and the
Withdrawal of Recognition From the Union
With respect to the changes made by the Respondent
in the working conditions of unit employees after Sep-
tember 15, 1978, the parties stipulated that the Respon-
dent did not advise the Union that the Respondent was
going to make those changes, nor did the Respondent
afford the Union the opportunity to bargain concerning
those changes. The parties further stipulated:
That is, that the successor company at the time it
began its business, unilaterally implemented its own
wage and benefit program; that the changes from
the predecessor company to the successor company
were as follows: (a) The Health and Welfare cover-
age changed to a new carrier, Pacific Mutual; (b)
that the pension plan was discontinued; (c) that he
dental plan was discontinued; (d) that the number of
holidays remained the same, except that the em-
ployee's birthday was substituted for the day after
Thanksgiving; (e) that although wages remained the
same, future wage increases for the successor com-
pany would be based solely upon merit, whereas
before wages were determined solely by the laborer
agreement; and that (f) otherwise there were no fur-
ther changes in wages and benefits.
RIC'S BEST AUTO PAINTING 1039
It was further stipulated that the Respondent, as the
successor Company, has refused to recognize the Union
since the Respondent began operation at the Sacramento
facility.
Introduced into evidence as General Counsel's Exhibit
9 was a copy of a letter dated September 20, 1978, to the
Union from Aguilar as the owner of the Respondent. It
stated, in pertinent part, the following:
This is to advise you formally that as of Septem-
ber 15, 1978, I have acquired the assets of the Sac-
ramento facility you formerly represented in a col-
lective bargaining agreement with Best Auto Paint-
ing, Inc. Please be advised that I have objective evi-
dence your union does not represent my employees
in any appropriate bargaining unit and that the cur-
rent picketing of my Sacramento facility amounts to
illegal recognitional picketing. I am prepared to file
charges and a petition with the N.L.R.B. if that be-
comes necessary and if your illegal picketing contin-
ues.
I have exercised my rights to hire new employees
so that the operation may run profitably. We have
hired one former employee covered by the old col-
lective bargaining agreement with Best Auto Paint-
ing, Inc. However, I chose not to hire Ron Royal &
Charles Sewell, Jr. because they had poor atten-
dance records with Best Auto Painting, Inc. and be-
cause of their overall on the job efficiency and con-
sistency in production.
A copy of a letter from Magdaleno to the Union was
introduced into evidence as General Counsel's Exhibit
10. Although the document is not dated, the parties
agreed that it was sent on or about September 20, 1978.
That letter stated, in pertinent part:
In mid August 1978, by registered letter, I ad-
vised you Best Auto Painting, Inc. was selling its
Sacramento store to Richard J. Aguilar and that we
were prepared to bargain over the effects of the
closure on bargaining unit employees. Your re-
sponse was to tell me not to send any more letters
to you. Subsequently you wrote me a letter dated
August 31, 1978 and quoted Section 29 of the Suc-
cessor Clause in the collective bargaining agree-
ment, which agreement, expired on August 1, 1978.
Prior to August 1, 1978 and pursuant to the Succes-
sor Clause in Section 28 of the collective bargaining
unit we advised your union in writing through busi-
ness Respresentative Bud Hennessey that a change
of ownership would occur more than 15 days prior
to its occurrence. We have not entered into a new
collective bargaining agreement with your union
nor have you requested negotiations over a new
agreement or over the effects of the closure. Since
you did not choose to bargain over the effects of
the closure, all employees were terminated and paid
in full through their last date worked.
As of September 15, 1978, Best Auto Painting,
Inc. sold 100 percent of its assets in the Sacramento
store to Richard Aguilar. Any further contacts you
may have regarding that store should be relayed to
him.
Wheeler acknowledged at the hearing that he had
never responded to either one of those letters, which
were introduced into evidence as General Counsel's Ex-
hibit 9 and General Counsel's Exhibit 10. Business Rep-
resentative Hennessy also acknowledged at the hearing
that he had not responded to the letters which were in-
troduced into evidence as General Counsel's Exhibits 4,
5, and 10.
General Counsel's Exhibit 13 is a document which sets
forth certain changes to be incorporated in the new col-
lective-bargaining agreement between the Union and the
Valley Motor Car Dealers' Council. The parties stipulat-
ed that Miracle Auto Painting is a body and painting
shop located in Sacramento, and that those changes, as
set forth in General Counsel's Exhibit 13, were applica-
ble to the employees of Miracle Auto Painting according
to the terms of its collective-bargaining agreement with
the Union, which bound those parties to the industry
agreement.
The picketing of the Respondent's Sacramento facility
by the Union began on Tuesday, September 19, 1978,
and lasted for 3 days. Royal and Sewell were the ones
who participated in that picketing.
N. Conclusions
Based upon the credited testimony, I conclude that the
Respondent engaged in unfair labor practices withiin the
meaning of Section 8(a)(1) of the Act when Aguilar
made statements to employees on September 15, 1978, to
the effect that the Respondent was going to operate its
Sacramento facility on a nonunion basis and was hiring
nonunion employees.
In considering the question of whether the Respondent
refused to hire Royal and Sewell because of their union
membership, one of the factors to be considered, among
others, is whether the reasons given by the Respondent
for its refusal to employ Royal and Sewell are genuine
reasons or whether they are pretextual reasons. In this
connection, it is helpful to note the Board's holding in
FPCAdvertisting, Inc., 231 NLRB 1135 (1977), where the
Board stated at page 1136:
Board law does not direct or permit the trier of fact
to substitute his business judgment, which is not a
fact of record, for that of the Respondent. An em-
ployer's business conduct is not to be judged by any
standard other than that which it has set for itself.
Thus, in view of the foregoing guidance from the
Board, the Respondent's standards and conduct, as de-
scribed previously in the findings of fact herein, are the
standards by which the Respondent's reasons for refusing
to hire Royal and Sewell must be judged. What other
persons would have done in similar circumstances would
not be determinative of the question of whether the Re-
spondent, in fact, refused to hire Royal and Sewell for
the reasons given to them by the Respondent, or wheth-
er the Respondent has used those reasons as a pretext to
hide a discriminatory motivation.
RIC'S BEST AUTO PAINTING
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As the Supreme Court observed in Howard Johnson
Co., Inc. v. Detroit Local Joint Executive Board, Hotel &
Restaurant Employees & Bartenders International Union,
AFL-CIO, 417 U.S. 249, 262, fn. 8 (1974):
Of course, it is an unfair labor practice for an em-
ployer to discriminate in hiring or retention of em-
ployees on the basis of union membership or activ-
ity under §8(a)(3) of the National Labor Relations
Act, 29 U.S.C. §158(a)(3). Thus, a new owner could
not refuse to hire the employees of his predecessor
solely because they were union members or to
avoid having to recognize the union. See N.L.R.B.
v. Burns International Security Services, 406 U.S. 272
280-281, fn. 5 (1972); K. B. & J. Young's Super Mar-
kets v. N.L.R.B., 377 F.2d 463 (CA 9), cert. denied
389 U.S. 841 (1967); Tri State Maintenance Corp. v.
N.L.R.B., 132 U.S. App. D.C. 368, 408 F.2d 171
(1968).
In its decision in Barrington Plaza and Tragniew, Inc.,
185 NLRB 962 (1970), the Board found a violation of
Section 8(a)(l) and (3) of the Act by the successor em-
ployer's refusal to hire employees who were represented
by a union or who were members of a union. The Board
stated at page 962:
At the time of its takeover the Respondent arranged
to have transferred to its employ virtually all of its
predecessor's unrepresented employees. But it took
an opposite course with respect to the maintenance
and service employees in the bargaining unit repre-
sented by the Union. The Respondent was aware
when it purchased the Plaza that the unit employees
were represented by the Union. However, as the
record makes clear, the Respondent was determined
at any cost not to become saddled as a successor
employer with an obligation to deal with a union at
the Plaza.
Counsel for the General Counsel does not contest the
fact that both Royal and Sewell had poor attendance and
tardiness records while they were employed by Best.
Nevertheless, the General Counsel argues that those
poor records by Royal and Sewell were used as pretexts
to conceal a discriminatory motivation.
The fact that the subject of the Union was brought up
by Aguilar in each one of his conversations with Royal
and Sewell on September 15, 1978, is a fact which
cannot be ignored. Without repeating here the findings
of fact which have already been set forth in sections H
and J of this Decision, it is noted that Aguilar made ref-
erence to the Union in both of those conversations, al-
though he expressed himself more clearly in his conver-
sation with Sewell on that date. For example, he in-
formed Sewell, "if I did come back to work it would
take six weeks or more depending on what the Union
might do." Aguilar also told Sewell on that occasion,
"Well, if it wasn't for the Union things would have
worked out a lot smoother."
Note also, as described more fully in section F of this
Decision, that Aguilar had previously told Brower on
September 1, 1978, that they would be terminating the
Union in another week.
In addition, as more fully set forth in section G herein,
Aguilar told Capaul on September 15, 1978, that the
Union was no longer there, and, "as long as he hired all
the non-union employees back that he could hire me
back." It was established that Capaul, Royal, and Sewell
had been union members while employed with Best.
Note also that both Royal and Sewell had sought the in-
tervention of their union representative in personnel dis-
putes with their supervisors while employed at Best.
Still another factor to be evaluated in considering
whether or not the Respondent's assigned reasons for not
hiring Royal and Sewell were pretextual reasons is the
disparity of treatment regarding Lozoya and the two al-
leged discriminatees. Although Lozoya had been hired
and fired on four occasions for poor attendance and ab-
senteeism, while Lozoya was employed by Best, the Re-
spondent nevertheless hired Lozoya.
This is not a situtation where a successor employer
was unaware of the facts regarding an applicant. Instead,
because of their managerial positions with the predeces-
sor employer, both Aguilar and Rustad were fully aware
of Lozoya's record at Best. The fact that the Respondent
hired Lozoya, nothwithstanding his work record at Best,
casts doubt on the genuineness of the reasons asserted by
the Respondent for failing to hire Royal and Sewell. In-
stead, the disparity of treatment is still another indication
that the Respondent's reasons for failing to hire Royal
and Sewell are pretextual ones.
After considering all of the foregoing, I conclude that
the reasons given by the Respondent for refusing to hire
Royal and Sewell were not the true reasons for Respon-
dent's actions, but instead that they were pretextual rea-
sons to conceal a discriminatory motivation. In these cir-
cumstances, I conclude that the Respondent has engaged
in unfair labor practices within the meaning of Section
8(a)(l) and (3) of the Act by its refusal to hire Royal and
Sewell on or about September 15, 1978, because they
were members of the Union.
No question has been raised that the Respondent is, in
fact, the successor employer to Best with regard to the
Sacramento facility. Furthermore, the unit description al-
leged to be an appropriate unit in paragraph 8(a) of the
General Counsel's complaint, as amended at the hearing
was admitted. (See pp. I and 5 of G.C. Exh. 3.)
In addition, the fact that the changes, which were
made by the Respondent with regard to the wages,
hours, and other terms and conditions of employment,
were made unilaterally, and without notice to the Union
nor bargaining with the Union, is conceded. Finally, it
was also stipulated that the Respondent has refused to
recognize the Union since the Respondent began oper-
ation of the Sacramento facility. (See G.C. Exh. 9.)
Given those circumstances and the other findings of
fact set forth previously herein, the legal issues presented
in this case may be analyzed in light of the Board and
court precedents relating to the status of an incumbent
union when a successor employer takes over a business,
and the legal obligations imposed on a successor employ-
er in the circumstances present herein.
RIC'S BEST AUTO PAINTING
The Board found a violation of Section 8(a)(1) and (5)
of the Act in Barrington Plaza, supra, where the employ-
er therein sought to evade a successorship bargaining re-
lationship with the union involved in that case. The
Board stated at page 963:
We believe a finding of an 8(a)(5) violation is
clearly supported by the foregoing facts showing
that the Respondent engaged in discrimination
against its predecessor's unit employees for the pur-
pose of evading a successorship bargaining relation-
ship with the Union. Authoritative precedent for
this conclusion is to be found in K. B. & J. Young's
Super Markets, 157 NLRB 271, enfd. 377 F.2d 463
(C.A. 9), cert. denied 389 U.S. 841, where the
Board so held on substantially similar facts, includ-
ing the fact that the union's representative status
was established only by its bargaining agreement
with a predecessor employer.
The Board further pointed out in Barrington Plaza,
supra at page 963, that there is a distinction to be drawn
between the terms "majority union support" and "major-
ity union membership" in these circumstances:
In the case of an incumbent union, majority
union support is not to be confused with majority
union membership. As was recently emphasized by
the Fourth Circuit Court of Appeals in Terrel Ma-
chine Co. v. N.L.R.B.: 8
A showing that less than a majority of the em-
ployees in the bargaining unit were members of
the union or paid union dues [is] not the equiv-
alent of showing lack of union support. Manifest-
ly . . . many employees are content neither to
join the union nor give it financial support but to
enjoy the benefits of its representation. Nonethe-
less, the union may enjoy their support, and they
may desire continued representation by it.9
Consistent with the foregoing, the principle has
long been settled that in an 8(a)(5) proceeding, in-
volving a refusal to bargain with a theretofore rec-
ognized union, the requisite proof of majority status
need not take the form of a Board certification or
card showing. The existence of a prior contract,
lawful on its face, raises a dual presumption of ma-
jority-a presumption that the union was the major-
ity representative at the time the contract was ex-
ecuted, and a presumption that its majority contin-
ued at least through the life of the contract.' 0
errell Machine Co.. 173 NlRB 1481) fr. 4, enfd. Terrell Ma-
chine (Company v . l R.B., 427 2d 10188 (C.A 4).
Accord. A. I R.B ( uifinmon tHotel (o. 362 2d 588 (C.A.
5)
10 Shamrockl Dairy. Itn-, 119 NI.RB 998. 1002. and 124 NLRB
494, 495 49h6, enfd 28(3 F 2d 665 (CAD C), cert. denied 364 U S
892. Ref-(hern Company, 169 NL.RB 376, enforcement denied 418
F.2d 127 (C.A 5)
In this connection, note the Board's holding in Bar-
tenders, Hotel, Motel and Restaurant Employers Bargain-
ing Association of Pocatello, Idaho, and its Employer-Mem-
bers, 213 NLRB 651 (1974), where the Board held at
page 652:
Similiarly, the Board, with court approval, has
held that a showing that less than a majority of the
employees in the unit are members of the union is
not the equivalent of showing lack of majority sup-
port. The reason is substantially the same as that re-
garding the checkoff figures, namely, that no one
can know how many employees who favor union
representation do not become or remain members of
the Union.
See also the Board's decision in Wald Transfer & Storage
Co. and Westheimer Transfer & Storage Co., Inc., 218
NLRB 592 (1975).
Whether the incumbent union had been certified in a
Board-conducted election, or whether the incumbent
union had been voluntarily recognized as the representa-
tive of the predecessor's employees in the appropriate
unit, is not crucial in determining the issues presented by
this case. In its decision in Bartenders, Hotel, Motel and
Restaurant Employers Bargaining Association of Pocatello,
Idaho, etc., supra, the Board held at pages 651 and 652:
The above principles set out in Terrell are equally
applicable whether the union has been certified by
the Board or, as here, recognized as the bargaining
representative of the employees by Respondent
without Board certification. 3 In the latter situation,
the existence of a prior contract, lawful on its face,
raises a dual presumption of majority-a presump-
tion that the union was the majority representative
at the time the contract was executed, and a pre-
sumption that its majority continued at least
through the life of the contract.4 Following the ex-
piration of the contract, as here, the presumption
continues and, though rebuttable, the burden of re-
butting it rests on the party who would do so, 5 here
Respondent.
3 See Emerson Manufacturing Company. Inc.. 200 NLRB 148
(1972), Cantor Bros. Inc. 203 NLRB 774 (1973).
4 Shamrock Dairy, Inc., et al., 119 NLRB 998 (1957), and 124
NLRB 494 (1959), enfd. 280 F.2d 665 (C.A.D.C.), cert. denied 364
U.S 892 (1960).
5 Barrington Plaza and Tragniew. Inc., 185 NLRB 962 (1970).
enforecement denied on other grounds sub nom. N.L.R.B v. Trag-
nic. Inc., and Consolidated Hotels of California, 470 F.2d 669 (CA.
9,1 972)
The Board reiterated the foregoing view in its decision
in Stockton Door Co., Inc., 218 NLRB 1053 (1975), where
the Board held at 1054:
When Stockton acquired Valley in March 1973
and continued to operate it without change in the
same industry, with the same employees, it became
Valley's successor. V.L.R.B. v. Burns International
Security Services, Inc., 406 U.S. 272 (1972). As Val-
ley's successor, it was required to recognize and
bargain with the incumbent collective-bargaining
1041
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative of the employees in the production
and maintenance unit; a unit which is presumptively
appropriate. It is not significant in this context that
the incumbent Union had never been certified as the
collective-bargaining representative of the employ-
ees in the unit. Eklund's Sweden House Inn, Inc., 203
NLRB 413 (1973).
Returning to the Board's decision in Barrington Plaza,
supra, the Board held at page 963:
The presumption applies not only to a situation
where the employer charged with a refusal to bar-
gain is itself a party to the preexisting contract, but
also to a successorship situation such as we have
here. The burden of rebutting this presumption
rests, of course, on the party who would do so. It is
true that a labor organization's continuing majority
may not be questioned during the term of a con-
tract. On the other hand, upon expiration thereof,
the presumption of majority arising from a history
of collective bargaining may be overcome by "clear
and convincing proof" that the union did not in fact
enjoy majority support at the time of the refusal to
bargain. At such time, it is also a valid defense for
the employer to "demonstrate by objective consid-
erations that it has some reasonable grounds for be-
lieving that the union has lost its majority status."
In light of the foregoing precedents, the question then
arises in this case as to whether the Respondent has in-
troduced evidence which will overcome the dual pre-
sumptions of the Union's continuing majority status,
which has been described in the foregoing decisions. The
Respondent points to the fact that it hired only one of
the union members in the three person bargaining unit of
the Respondent's predecessor. The evidence shows that
all three of the persons in the unit at the time that the
predecessor ceased its operation of the Sacramento facili-
ty were members of the Union. However, the Respon-
dent points out that there were seven employees in the
unit when the Respondent commenced business, and
only one of those employees was a member of the
Union.
Nevertheless, as the Board has held in the cases re-
ferred to above, union membership is to be distinguished
from union majority support. Thus, the question still re-
mains whether the Respondent has introduced evidence
in this proceeding which overcomes the presumption of
majority status which was established by the recognition
of the Union and the collective-bargaining agreement be-
tween the predecessor employer and the Union. Another
question remains as to whether the employer may assert
that it has objective considerations supporting its doubt
of the Union's majority status in the context of the Re-
spondent's having committed unfair labor practices. The
Board furnished guidance in answering these questions in
its decision in Barrington Plaza, where it held at page
964:
Had the Respondent genuinely doubted the Union's
majority and refrained from unlawful discrimina-
tion, it would not have been without remedy to re-
solve such doubt as it might have had. In that
event, it could itself have filed a representation peti-
tion with the Board to ascertain through an election
the Union's right to continued representation. Or it
could have withheld recognition subject to resolu-
tion of the representation question via a petition
filed by the Union. The Respondent, however,
elected neither of such courses. Instead it chose an
unlawful course of action which precluded any pos-
sibility of holding a fair election. To deny a bargain-
ing order in this case would allow the Respondent
to continue to enjoy the very benefit its unfair labor
practices were designed to achieve. This in our
judgment would serve to subvert rather than effec-
tuate statutory policy.
In accord with the Board decisions and court decisions
cited above, I conclude that the Union in this case en-
joyed a rebuttable presumption of continuing majority
status in an appropriate unit at the Sacramento facility.
The Respondent sought to undermine the Union's major-
ity status by its refusal to hire Royal and Sewell because
they were members of the Union, and thereby the Re-
spondent engaged in unfair labor practices within the
meaning of Section 8(a)(1) and (3) of the Act. Those
contemporaneous unfair labor practices preclude the Re-
spondent from asserting that it had a reasonably based
doubt of the Union's majority status based upon objec-
tive considerations. See Terrell Machine, supra, and cases
cited above. Furthermore, while the record shows that
there was only one union member in the seven-person
unit when the Respondent commenced business, the
Board has held that there is a distinction between union
membership and union majority support. Thus, simply
showing that one person is a member of the Union is not
such "clear and convincing proof" that would overcome
the Union's presumption of continuing majority support
in the unit under these circumstances. See Barrington
Plaza, supra, Terrell Machine, supra, and the cases cited
above. As the Board concluded in Barrington Plaza, "To
deny a bargaining order in this case would allow the Re-
spondent to continue to enjoy the very benefit its unfair
labor practices were designed to achieve."
In these circumstances, I conclude that the Respon-
dent, as a successor employer, was obligated to recog-
nize and to bargain with the Union. I further conclude
that the Respondent's withdrawal of recognition from
the Union on September 20, 1978, violated Section
8(a)(l) and (5) of the Act.
Finally, I turn to the question of whether the unilateral
changes, which were admittedly made by the Respon-
dent, were matters about which the Respondent was ob-
ligated to bargain with the Union. In that connection, it
has been helpful to reexamine the Supreme Court's deci-
sion in N.L.R.B. v. Burns International Security Services,
Inc., 406 U.S. 272, in light of the particular facts of this
case.
Administrative Law Judge Richard J. Boyce, whose
decision was affirmed by the Board in Potter's Drug En-
terprises, Inc., d/b/a Potter's Chalet Drug and Potter's
Westpark Drug, 233 NLRB 15 (1977), analyzed the Su-
RIC'S EST AUTO PAINTING 1043
preme Court's decision in Burns in a context similar to
the facts in this case (233 NLRB at 20):
Respondent also violated that section by unilater-
ally departing from certain terms and conditions of
employment in effect between Tufts and the Union,
coincident with its takeover. Again extracting from
the Supreme Court's Burns decision (at 294-295):
Although a successor employer is ordinarily
free to set initial terms on which it will hire the
employees of a predecessor, there will be instances
in which it is perfectly clear that the new employer
plans to retain all of the employees in the unit and
in which it will be appropriate to have him ini-
tially consult with the employees' bargaining rep-
resentative before he fixes terms. [Emphasis sup-
plied.]
The emphasized portion of this passage is not de-
scriptive of the present situation only because of
Respondent's predisposition to hire less than a ma-
jority of the Tufts' employees for an unlawful
reason. Consequently, to "prevent Respondent from
reaping financial gain from its unlawful conduct,""
the principle must obtain. Respondent's successor-
ship status was never sufficiently inchoate in point
of law to entitle it to set initial terms of employ-
ment. It follows that Respondent is under a present
obligation to bargain with the Union, on request,
concerning any terms and conditions of employ-
ment over which it would have been required to
bargain had the Union's lawful status been acknowl-
edged on August 2, 1976-the date Respondent as-
sumed operation of the two stores, Bachrodt Chevro-
let Co., 205 NLRB 784 (1973). See also Donn Prod-
ucts, Inc. d American Metals Corporation, 229
NLRB 116, 117 (1977).
'9 Ellis Tocke Company, 229 NLRB 1296 (1977).
Administrative Law Judge Boyce's analysis and con-
clusions in Potter's Drug, which were adopted by the
Board, are equally persuasive and applicable in the cir-
cumstances of this case. Accordingly, I find that the Re-
spondent has also violated Section 8(a)(1) and (5) of the
Act by the unilateral changes which the Respondent
made on September 18, 1978.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce 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. The following employees of the Respondent consti-
tute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act:
All employees employed by the Respondent at its
Sacramento, California, facility, excluding detailers,
janitors, pickup and delivery employees, office cleri-
cal employees, salesmen, guards and supervisors as
defined in the Act.
4. At all times material herein, the Union has been the
exclusive collective-bargaining representative of all of
the employees in the above-described unit.
5. By telling employees on or about September 15,
1978, that the Respondent was going to operate its Sac-
ramento facility on a nonunion basis and was hiring non-
union employees, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of
the Act.
6. By refusing on or about September 15, 1978, to hire
Ronald S. Royal and Charles Rufus Sewell, Jr., because
they were members of the Union, the Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the Act.
7. By making changes unilaterally on or about Septem-
ber 18, 1978, without notice to or bargaining with the
Union, in the rates of pay, wages, hours, and other terms
and conditions of employment of the employees in the
unit described above, the Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) and (5) of the Act.
8. By withdrawing recognition from the Union on or
about September 20, 1978, and by failing and refusing to
bargain with the Union as the exclusive collective-bar-
gaining representative of the employees of the Respon-
dent in the unit described above, the Respondent has en-
gaged in unfair labor practices within the meaning of
Section 8(a)(l) and (5) of the Act.
9. The unfair labor practices set forth above affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
'THE REMEDY
Since I have found that the Respondent has engaged
in unfair labor practices within the meaning of Section
8(a)(l), (3), and (5) of the Act, I shall recommend to the
Board that the Respondent be ordered to cease and
desist from engaging in those unfair labor practices.
I shall also recommend to the Board that the Respon-
dent take certain affirmative action in order to effectuate
the policies of the Act. Such affirmative action will in-
clude an offer to employ Ronald S. Royal and Charles
Rufus Sewell, Jr., and an order to make them whole for
their loss of earnings resulting from the Respondent's dis-
crimination against them. Backpay for Royal and Sewell,
together with interest on such backpay amounts, will be
computed in accordance with the Board's decisions in F.
W. Woolworth Company, 90 NLRB 289 (1950); Isis
Plumbing & Heating Co., 138 NLRB 716 (1962), and
Florida Steel Corporation, 231 NLRB 651 (1977).
The General Counsel's request that the interest rate be
fixed at a 9-percent annual rate is hereby denied. See
Hansen Cakes, Inc., 242 NLRB No. 74 (1979); Southern
California Edison Company, 243 NLRB No. 62 (1979);
Neely's Car Clinic, 242 NLRB No. 69 (1979), and W.
Carter Maxwell d/b/a Pioneer Concrete Co., 241 NLRB
No. 31 (1979).
With regard to the unilateral changes made by the Re-
spondent, I shall also recommend to the Board that the
RIC'S BEST AUTO PAINTING 43
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent return to the status quo ante which was in
effect prior to the Respondent's implementation of such
unilateral changes, and that the Respondent reimburse
employees for any monetary losses which they have suf-
fered as a result of such changes. Atlas Tack Corporation,
226 NLRB 222 (1976). In that case, the Board held:
"The Board has traditionally ordered that employees be
made whole for any benefits unilaterally discontinued by
the Employer in violation of Section 8(a)(5) of the Act."
See also Boland Marine and Manufacturing Company,
Inc., 225 NLRB 824 (1976).
In addition, I shall also recommend a bargaining order
to remedy the Respondent's withdrawal of recognition
from the Union and the refusal to bargain with the
Union, as well as a remedy for the unilateral changes.
Finally, I shall recommend to the Board a narrow
cease-and-desist order. Hickmott Foods, Inc., 242 NLRB
No. 177 (1979); Supreme Bumpers, Inc., d/b/a Precision
Plating, 243 NLRB No. 45 (1979).
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record in this proceeding,
and pursuant to the provisions of Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER'
The Respondent, Richard Aguilar, d/b/a Ric's Best
Auto Painting, Sacramento, California, his agents, suc-
cessors, and assigns, shall:
I. Cease and desist from:
(a) Telling employees that the Respondent was going
to operate its Sacramento facility on a nonunion basis
and was hiring nonunion employees.
(b) Refusing to hire Ronald S. Royal and Charles
Rufus Sewell, Jr., because they are members of the
Union.
(c) Making changes unilaterally, without notice to or
bargaining with the Union, in the rates of pay, wages,
hours, and other terms and conditions of employment of
the employees in the unit described below. The appropri-
ate unit is:
All employees employed by the Respondent at its
Sacramento, California, facility, excluding detailers,
janitors, pickup and delivery employees, office cleri-
cal employees, salesmen, guards and supervisors as
defined in the Act.
(d) Withdrawing recognition from the Union, and fail-
ing and refusing to bargain with the Union, as the exclu-
' 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 in
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.
sive collective-bargaining representative of the employ-
ees of the Respondent in the unit described above.
(e) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary in order to effectuate the policies of
the Act:
(a) Offer employment to Ronald S. Royal and Charles
Rufus Sewell, Jr., without the loss of their seniority, or
other rights and privileges, from September 18, 1978.
(b) Make whole Ronald S. Royal and Charles Rufus
Sewell, Jr., for their loss of earnings, with appropriate in-
terest thereon, which has resulted from the Respondent's
refusal to hire them, as more fully described in The
Remedy section of this Decision.
(c) Restore the status quo ante which existed prior to
the implementation of the unilateral changes made by the
Respondent with regard to the rates of pay, wages,
hours, and other terms and conditions of employment of
its employees in the unit previously described above, and
reimburse its employees for monetary losses resulting to
them from the Respondent's unilateral changes.
(d) Recognize and, upon request, bargain collectively
with the Union as the exclusive collective-bargaining
representative of the employees of the Respondent in the
bargaining unit previously described above, and embody
in a signed agreement any understanding which may be
reached.
(e) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(f) Post at its Sacramento, California, facility copies of
the attached notice marked "Appendix B." 2 Copies of
said notice, on forms provided by the Regional Director
for Region 20, after being duly signed by the Respon-
dent's authorized representative, shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained by the Respondent for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(g) Within 20 days of the date of this Order, the Re-
spondent shall write a letter to the Regional Director of
Region 20 of the Board and tell her what the Respon-
dent has done to comply with this Order.
2 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."