Local 259, United Automobile Workers

National Labor Relations Board - Board Decisions

Nov 13, 1975

221 N.L.R.B. 656 (N.L.R.B. 1975)

656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 259, United Automobile' Workers, UAW and
`Stamford Motors, Inc. Case 2-CB-5744
November 13, 1975
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND
PENELLO
On August 5, 1975, Administrative Law Judge
Herbert' Silberman issued the attached Decision in
this proceeding. Thereafter, the General Counsel, the
Charging Party, and Respondent filed exceptions
and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
FINDINGS OF FACT
1. JURISDICTION
Stamford Motors, Inc., herein' called Stamford, a
Connecticut corporation, is engaged in the retail sale and
repair of automobiles. During the calendar year 1974,
which period is representative of its operations, Stamford's
gross revenues from the conduct of its business exceeded
$500,000 and its purchases of goods and materials which
were transported from outside the State of Connecticut
through channels of interstate commerce to ' its place of
business in Stamford, Connecticut, exceeded $50,000.
Lincoln Mercury , of Stamford, Inc., herein called
Lincoln-Mercury Corp., a Connecticut corporation, is
engaged in the retail sale and repair, of automobiles at its
place of business in Stamford, Connecticut. During the
year 1974, 'which period is representative' of its annual,
operations, Lincoln-Mercury Corp.'s revenues exceeded,
$500,000 and its purchases of goods and materials from
outside the State of Connecticut which were shipped
through channels of interstate commerce to its place of
business in Stamford, Connecticut, exceeded $50,000.
I find that at all times material hereto Stamford and
Lincoln-Mercury Corp. have been employers engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
This proceeding is concerned with a controversy between
the Union, Stamford, and Lincoln-Mercury Corp.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN, Administrative Law Judge: Upon
a charge and an amended charge filed on December 6,
1974, and February 6, 1975, respectively, there were issued
a complaint, dated January 31, 1975, and an amendment to
the complaint, dated February 14, 1975, alleging that the
Respondent, Local 259, United Automobile Workers,
UAW, herein called the Union, has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(b)(1)(A), (2), and (3) of the National Labor
Relations Act, as amended. The complaint was further
amended at the hearing. Respondent duly filed an answer,
which was amended at the hearing, that generally denies
that it has committed the alleged unfair labor practices and
interposes various affirmative defenses. A hearing in this
proceeding was held in New York, New York, on April 21
and 22, 1975. Posthearing briefs were filed with the
Administrative Law Judge on behalf of General Counsel
and Respondent.
Upon the entire record in the case, I make the following:
221 NLRB No. 97
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
Local 259, United Automobile Workers, UAW, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Operations of the Companies
Stamford began operations as a franchised Ford motor
car dealer in 1943. Until August 15, 1973, its place of
business was located on Washington Boulevard in Stam-
ford, Connecticut. On August 15, 1973, it moved to 212
Magee Avenue, also in Stamford.
In 1969 Stamford acquired a franchise from the Lincoln-
Mercury Division of the Ford Marketing Corporation on
what is referred to as "an interim basis," so called because
the franchise terminated automatically at the end of each
contract year unless specifically renewed. In this respect
the Lincoln-Mercury franchise differed from Stamford's
Ford franchise which is referred to as a perpetual franchise
because it automatically renews itself from year to year.
The reason that the Lincoln-Mercury franchise was given
to Stamford on an interim basis is that the manufacturer
had no representation in Stamford, Connecticut, and
entered into the described relationship as a means of
obtaining temporary representation until such time as it
could arrange for a separate Lincoln-Mercury dealership in
the town of Stamford. The last renewal of Stamford's
Lincoln-Mercury franchise is dated February 28, 1973, and
by its terms would have terminated automatically on
February 28, 1974. However, the franchise was terminated
LOCAL 259, UNITED AUTOMOBILE WORKERS
by mutual agreement on August 14, 1973, and as of
September 1, 1973, Lincoln-Mercury Corp. acquired the
Lincoln-Mercury franchise for the Stamford area and
began to do business at 186 Magee Avenue in Stamford,
Connecticut.
For some years prior to 1973 Stamford deemed that its
premises on Washington Boulevard were too small for its
operations. In 1972, Stamford had an opportunity to
purchase a 12-acre tract on Magee Avenue in Stamford
which it considered desirable but which was too large for
its needs . Stamford acquired that tract after making an
arrangement with the Ford Motor Company to furnish
financial assistance ) in consideration of an undertaking on
the part of Stamford to lease a portion of the property to a
separate Lincoln-Mercury dealership. The entire parcel of
land is approximately 200,000 square feet. A corner of the
tract encompassing approximately 60,000 square feet is
leased to Lincoln-Mercury Corp. There is no fence or other
barrier describing the boundary between the property used
by Stamford and the leased premises. However, Stamford
and Lincoln-Mercury Corp. occupy separate, freestanding
buildings, the respective addresses being 212 Magee
Avenue and 186 Magee Avenue, from which they conduct
their individual operations. Lincoln-Mercury Corp. pays to
Stamford a yearly rental, of approximately $65,000 for the
property which it occupies.
Both companies conduct their agencies independently of
one another. In addition ;to separate buildings , they have
separate complements of employees , they maintain sepa-
rate payrolls , bank accounts, credit lines, and, in general,
operate without the help or interference of one another.
B. Relationship Between Stamford and Lincoln-
Mercury Corp.
As will be discussed more fully below, the Union for
some years represented Stamford's shop employees. The
Union contends that when Stamford moved from its
Washington Boulevard premises to Magee Avenue the
Union continued to represent Stamford's shop employees
and also represented Lincoln -Mercury Corp .'s shop em-
ployees. According to the Union, the two companies
constitute a single employer and to separate the employees
into two units would attach excessive significance to the
corporate facades and would purposelessly fragment the
original unit. Prior to the move the unit employees worked
on all three brands of automobiles, Fords, Lincolns, and
Mercurys, for Stamford.' After the move Stamford stopped
servicing Lincolns and Mercurys and that work was
acquired by Lincoln-Mercury Corp.
Lincoln-Mercury Corp. has only two shareholders and
the relationship between them is defined by an agreement
dated September 1, 1973. The majority stockholder is
Stamford, which acquired 2,000 shares at a cost of
$120,000 and the minority stockholder is John McLean
who acquired 1,000 shares at a cost of $60,000 .2 For 10
years before he purchased his interest in Lincoln-Mercury
Corp. McLean had been the sales manager for Stamford.
The stockholders' agreement contemplates the employ-
657
ment of McLean for a term of 5 years and 4 months as vice
president and general manager of Lincoln-Mercury Corp.
subject to the limitation that "nothing contained herein
shall prevent Lincoln [Lincoln Mercury of Stamford Inc.]
or McLean from terminating the employment relationship
for any reason during the Employment Term." In addition
to salary, the stockholders' agreement provides for the
payment of stock bonuses to McLean subject to the
restriction that the aggregate number of shares which may
be issued to McLean shall not exceed 49 percent of the
outstanding capital stock of the company. The stockhold-
ers' agreement also provides that at the end of McLean's
employment term, if he shall still be in the employ of
Lincoln-Mercury Corp., McLean shall have the option to
purchase the shares of stock of Lincoln-Mercury Corp.
owned by Stamford at their then book value, but if he does
not exercise that option Stamford then has the reciprocal
option to purchase McLean's shares.
The directors of Lincoln-Mercury Corp. are John
McLean, Ronald Kelly, and George Vest. The officers of
the Company are Ronald Kelly, president; John McLean,
vice president ; and George Vest , secretary . George Vest is
an attorney and performs no operational functions for
Lincoln-Mercury Corp.
The business of Lincoln-Mercury Corp. is directed and
managed by McLean without the day-to-day, participation
of Ronald Kelly, despite his title as president, or of anyone
else affiliated with Stamford. From time to time McLean
consults with Ronald Kelly about the business affairs of
Lincoln -Mercury Corp . and that constitutes the extent of
Ronald Kelly's involvement in the direction , management,
and operation of the business of Lincoln-Mercury Corp.
Thus, neither Ronald Kelly nor anyone else affiliated with
Stamford supervises or directs the work of Lincoln-
Mercury Corp.'s employees or hires, discharges, promotes,
or fixes the compensation of its employees . Neither Ronald
Kelly nor anyone else affiliated with Stamford plays any
role in establishing personnel or labor relations policies for
Lincoln-Mercury Corp.
The stockholders of Stamford are: John A. Kelly, who
owns 51 percent of the outstanding shares; his son Ronald
Kelly, who owns 6,percent; Joan Kelly, the latter's wife,
who owns 3 percent; David Kelly and Donna Kelly, his
children, each of whom owns 3 percent ; and Herbert R.
Helsing, who owns 33 percent.
The directors of Stamford are John Kelly, Ronald Kelly,
Clifford Oviatt, and George Vest. Both Clifford Oviatt and
George Vest are attorneys who perform legal services for
Stamford but otherwise are not employed by the Company.
The chairman of the board of directors is John Kelly, who
is now retired and does not concern himself with the
business operations of Stamford.
The officers of Stamford are Ronald Kelly, president;
George Vest, secretary ; and Robert Darwick , treasurer.
Robert Darwick is employed by Stamford as its comptrol-
ler, office manager, and accountant. Ronald Kelly is the
principal operating official of Stamford.
Neither John McLean nor anyone else affiliated with
Lincoln-Mercury Corp. exercises any authority with
1 The nature of the financial assistance is not described in the record
2 McLean has acquired an additional 250 shares through the issuance of
such number of treasury shares
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respect to the business of Stamford or exercises any
supervision over the, employees of Stamford or in any
manner is concerned with the labor relations policies of
Stamford.
When, Stamford moved from its Washington Boulevard
premises to Magee Avenue it transferred its entire work
force to the new location, including all its shop employees.
Despite the fact that Stamford surrendered its Lincoln-
Mercury franchise, there was a small increase in its shop
complement after the move on August 15, 1973.
The only business which is done between Stamford and
Lincoln-Mercury Corp. is the following:
(1) Lincoln-Mercury Corp. does not have a body shop on
its premises where it is able to repair damage to the body
structure of automobiles. When it began operations on
September 1, 1973, and also at the time of the hearing,
Lincoln-Mercury Corp. subcontracted its bodywork to
Stamford. Arrangements for such subcontracting have
been made through. arm's length dealings between the two
companies . There was a period of some months when
Lincoln-Mercury Corp. discontinued subcontracting its
bodywork to Stamford because Lincoln-Mercury Corp.
was of the opinion that the prices. being charged by
Stamford were too' high. Only after Stamford established
what Lincoln-Mercury Corp. considered to be competitive
rates did the latter again give its bodywork to Stamford as
it is convenient for Lincoln-Mercury Corp. to have its
bodywork performed by Stamford because of the physical
proximity of the two companies.
(2) Stamford leases one repair bay from Lincoln-Mercu-
ry Corp. The space is approximately 160 square feet and
Stamford pays' a rental of about $2,000 per year for the use
of such space.
(3) The only other connections between -the two
companies are the following : (a) When Lincoln-Mercury
Corp. commenced operations it hired John Reilly as a
service manager . Reilly previously had been employed in a
similar capacity by Stamford and was then available for
employment because his' job with Stamford had been
phased out. (b) Both companies use the same firm of
attorneys and the same auditing firm.3 (c) Parts are
obtained by both companies from the same depot which is
located about 50 miles from the town of Stamford. The
parts department employees of the two companies some-
times make arrangements between themselves whereby one
will pick up parts from the depot for the other.
C. The Union's Demands
On September 30, 1968, the Union was certified as,the
representative of the following unit of Stamford's employ-
ees:
All shop employees in the service department of
Stamford Motors Inc. and Auto Lease of America Inc.,
including mechanics , get ready men, service men, parts
men, body shop employees, car jockeys, porters,
lubricators and polishers, but excluding all office
clerical employees , salesmen, guards, watchmen, and
supervisors as defined in the Act.
Thereafter, Stamford and the Union entered into a
succession of collective-bargaining agreements. The most
recent agreement is for a term effective from March 15,
1974, to March 15, 1976. The agreement includes _ a
conventional union-security clause which requires all
employees within the unit to become members of the
Union as a condition of employment within-,31 days of
hire.
In the fall of 1973, after Stamford had moved to the
Magee Avenue location, Union Representative Joe Lewis
spoke with Ronald Kelly in Stamford's showroom. Lewis
informed Kelly that the shop employees of Lincoln-
Mercury Corp. were part of the unit represented by the
Union, were subject to the collective-bargaining agree-
ment, and that Stamford was in violation of the agreement
in that the terms of the agreement were not being applied
to the shop employees of Lincoln-Mercury Corp.
On November 6, , 1973, the Union wrote to Stamford
calling, attention to the union-security clause of the
contract and requesting the discharge of Scarpone and
Thysie, who were then employed-as mechanics by Lincoln-
Mercury Corp., because they had, not paid dues and
initiation fees to, and were not members in good standing
of, the Union. The employees were not discharged. On
November 8, 1973, the attorneys for the Union notified the
American Arbitration Association that a dispute existed
under the contract between Stamford and the Union and
requested the submission of a panel of arbitrators.
An arbitration was conducted before, Philip Feldblum on
February 5, 1974. The parties to the proceeding were the
Union and Stamford. Lincoln-Mercury Corp. was not a
party to the proceeding and did not appear at the
arbitration hearing. On April 12, 1974, Arbitrator Feld-
blum issued a decision and award in the matter. The award
is as follows:
1. The collective bargaining agreement between
Stamford Motors, Inc. and Local 259, U.A.W. is
applicable to employees, of Lincoln-Mercury -of Stam-
ford, Inc., a subsidiary corporation.
2. Stamford Motors, Inc., shall discharge , or cause to
be discharged, Scarpone, and Thysie, employees of
Lincoln-Mercury of Stamford, Inc., unless said employ-
ees, within thirty-one (31) days of the issuance of this
award, tender to the- Union the periodic dues and
initiation fees uniformly required by the Union.
The essential basis for the award , as expressed in the
arbitrator 's decision, is as follows:
The Company's ownership of two-thirds of the
outstanding stock of Lincoln; the interlocking director-
ates; and the limitation of McLean's holdings to a
minority interest durirfg the employment term, all
demonstrate the Company's present control of Lincoln,
which will continue for almost five more years. Of even
greater significance, is the terminability of McLean's
emplyment. "for any, reason" and the Company's right,
upon such termination , to purchase McLean's stock.
3 Robert Darwick, who is comptroller for Stamford, supervises the
bookkeeping operations of Lincoln-Mercury Corp for which he is paid by
the latter company
LOCAL 259, UNITED AUTOMOBILE WORKERS
See, NLRB v. Gass, 377 F. 2d 438; NLRB v. Royal Oak
Corp., 320 F. 2d 77.) [Sic.]
Such absolute control, combined with the undisput-
ed' facts that Lincoln employees perform services
previously rendered by Company employees covered
by the collective bargaining agreement; that such
services are performed in an adjacent building on
Company owned property, constitutes both corpora-
tions a single employer for labor relations purpos-
es....
I find, therefore, that the collective bargaining
agreement between, the Company and the Union is
applicable to employees of Lincoln in the covered
classifications.
About September 24, 1974, the Union filed a petition in
the Supreme Court of the State of New York to confirm the
arbitrator's award. The application was granted by an
order of Mr. Justice Sidney A. Fine, dated March 7, 1975.
For reasons unrelated to the dispute between the Union
and Stamford both Scarpone and Thysie have been
discharged by Lincoln-Mercury Corp. Thysie was dis-
charged in January 1974 because he was not a qualified
mechanic. Scarpone was discharged on April 22, 1975,
because he had a fight with the service manager.
D. The Issues
The following issues are presented:
1. Do Stamford and Lincoln-Mercury Corp. constitute
a single employer for labor relations purposes?
2. Under the Collyer and Spielberg doctrines should the
Board relinquish'its jurisdiction in this case?
3. Has General Counsel proved a violation of Section
8(b)(3)?
4. Is the complaint time barred under Section 10(b)?
E. Conclusions
1. As to the scope of the unit
Essential to Respondent's substantive defense is that
Stamford and Lincoln-Mercury Corp., although separate
legal entities , operate as, a single employing enterprise.
Only if such relationship exists can the argument be made
that the unit of Stamford's employees, certified by the
Board and described in the collective-bargaining agree-
4 General Counsel in his brief 'contends that even if the two entities
constitute a single employer the shop employees of Lincoln-Mercury
are not part of the unit of Stamford's employees represented by
Respondent . General Counsel advances an elaborate argument to the effect
that only if the shop employees of Lincoln-Mercury Corp. are an accretion
to the' unit of shop employees ofStamford, which he contends they are not,
can the employees of Lincoln-Mercury Corp be deemed part of the
contractual and certified unit . Because I find that the two companies do not
constitute a single employing enterprise and that the shop employees of
Lincoln-Mercury Corp. are not covered by the collective-bargaining
agreement ' between Stamford and Respondent, it is unnecessary to 'pass
upon General Counsel's accretion argument.
5 Radio a Television Broadcast Technicians Local Union 1264, Internation-
al Brotherhood of Electrical Workers, AFL-CIO v Broadcast Service of
Mobile, Inc., 380 U S. 255, 256 (1965) See also Sakrete of Northern
California, Inc, 140 NLRB 765'(1963), enfd. 332 F 2d 902 (C A. 9, 1964),
cert. denied 379 U S 961 (1965)
659
ment between Stamford and the Union, includes the shop
employees of Lincoln-Mercury Corp-
In determining whether 3 nominally separate business
entities constitute a -single integrated enterprise, or single
employer, "[t]he controlling criteria . . . are interrelation
of operations, common management, centralized control of
labor relations and common ownership." 5 However,
greater emphasis usually is placed upon the degree of
common control of labor- relations than upon the other
criteria. As explicated in Gerace, "[a] critical factor in
determining whether separate legal entities operate as a
single employing enterprise is the degree of common
control of labor relation policies. Thus, the Board has
found common ownership not determinative where requi-
site common control was not shown, and the Board has
held with court approval that such common control must
be actual or active, as distinguished from potential control.
[Footnotes omitted.]" 6
Stamford and Lincoln-Mercury Corp. are individually
incorporated business organizations. Each conducts and
operates its business separate and apart from the other and
the direction and control of each is independent of the
other. Because Stamford owns a majority of the outstand-
ing shares of stock of Lincoln-Mercury Corp. the-potential
exists that Stamford, if it wished to do so, could exercise
control over the business affairs of Lincoln-Mercury Corp.
However, to date it has not done so. In order to justify a
finding that two companies constitute a single employer
"common control must be actual or active, as distinguished
from potential control." There is no such actual or active
common control in this case.
I find that, Stamford and Lincoln-Mercury Corp. do not
constitute a single employer. I further find that the Union
is not the majority representative of the shop employees of
Lincoln-Mercury Corp. and that the existing, collective-
bargaining agreement between Stamford and the Union
does not apply to or cover any employees of Lincoln-
Mercury Corp. It follows, therefore, that the Union had no
right to demand the discharge of Lincoln-Mercury Corp.'s
employees, Scarpone and Thysie, because they were not
members in good standing of the Union as required under
the contract between Stamford and the Union.7
2. As to the effect of the arbitrator's award
In a proceeding involving Stamford and the Union, but
not Lincoln-Mercury Corp., Arbitrator Feldblum on April
6 Gerace Construction, Inc and Helger Construction Company, ' Inc , 193
NLRB 645 (1971). See also Peter Kiewit Sons' Co and South Prairie
Construction Co, 206 NLRB 562 (1973), Frank N. South Associates, Inc and
Keuka Construction Corporation, 194 NLRB 212 (1971).
7 Sec. 8(b)(2) of the Act states- "It shall be an unfair labor practice for a
labor organization or its agents . . . to cause or attempt to cause an
employer to discriminate against an employee to violation of subsection
(a)(3) . ." In this case the Union attempted to cause Stamford to
discharge two employees who were not in its employ. Was there an "attempt
to cause an employer to discriminate against an employee" within the
meaning of Section 8(b)(2)? This issue has,not been treated by counsel in
their briefs As I recommend below that the complaint be dismissed because
the charges filed by Stamford are time barred, it is unnecessary for me to
resolve the question. But see Waterfront Guard Association, Local 1852,
Independent Watchmen's Association of the Port of Baltimore (Amstar
Corporation), 209 NLRB 513 (1974), enfd. 508 F.2d 839 (CA. 4, 1974), cert.
denied 421 U.S 1000, (1975); 33 NLRB Ann Rep. 26 (1%8) '
DECISIONS .OF NATIONAL LABOR RELATIONS BOARD
12; 1974, issued an award that: (1) The collective-bargain-
ing agreement between Stamford and the, Union is
applicable to the employees of Lincoln-Mercury Corp. and
(2) Stamford shall, discharge,, or,cause to be discharged,
Scarpone and Thysie, employees of Lincoln-Mercury
Corp. Contrary to Arbitrator Feldblum, I have found that
the collective-bargaining agreement between Stamford and
the Union does not apply to employees, of-Lincoln-
Mercury Corp. because that Company is an entity separate
and distinct from Stamford.
The Act, contemplates that other fora may , have
concurrent jurisdiction with the Board. However, , the
power delegated to the Board to prevent any person from
engaging in any unfair labor practice (listed in Sec. 8)
affecting commerce is not "affected by any other means of
adjustment or , prevention that has been or may be
established by agreement, law, or otherwise ...."8 There-
fore, although the Board may in its discretion elect to defer"
to arbitral processes,-it is • not compelled to do so.9 The
Board has defined the circumstances and situations under
which it will yield its jurisdiction-to determine alleged
unfair labor practices to an arbitrator's award or to an
arbitration proceeding which has been or will be instituted
under the' provisions of a collective-bargaining agree-
ment . 10 But when the Board elects to assert jurisdiction, its
decisions take precedence over conflicting arbitral awards
enforcing private contract rights."
As Section 9(b) of the Act directs that the Board "shall
decide-in each case" the appropriate unit that will assure
employees the fullest freedom of choice in selecting a
statutory bargaining representative it has been the Board's
general policy not to defer unit issues to arbitral determina-
tions.12 -Furthermore, the,award of Arbitrator Feldblum is
repugnant to the Act because its effect is, to impose
representation by the Union on the employees of Lincoln-
Mercury Corp. a's `a matter of contract-to which their
employer is not party-and ' to deprive them of, their
statutory', right ' to make ' their own choice of bargaining
representative.13 Accordingly, I find that it would be
inappropriate in this case""for the Board to defer to the
decision of Arbitrator Feldblum.14
8 Sec. 10(a)
9 N LR B v. Joseph T Strong, d/b/a Strong Roofing and Insulating Co,
393 U.S 357, 360"362 (1969)
10 See Spielberg Manufacturing Company, 112 NLRB 1080, 1082 (1955),
Collyer Insulated Wire, 192 NLRB 837 (1974), which enunciatethe policies
that the Board has followed and'has'applsed in many cases thereafter issued.
11 Carey, President of the International Union of Electrical, Radio, &
Machine Workers, AFL-CIO v. Westinghouse Electric Corp, 375 U S 261,
272 (1963).
12 See „Ge,rmantown Development Co, Inc, 207 NLRB 586 (1973),
Hershey Foods Corporation, 208 NLRB 452 (1974), enfd. sub nom. N L R B
v Bakery and Confectionery , ,Workers International Union of America,
Chocolate Workers Local No 464, 506 F 2d 1052 (C A 3, 1974), Combustion
Engineering, Inc, 195 NLRB 909, 911 (1972) But see Raley:, Inc d/b/a
Raley's Supermarkets, 143 NLRB 256 (1963), Carey v Westinghouse Electric
Corp, supra at fn 7.
13 See N L R B v. Magnavox Company of Tennessee,. 415 U S 322, 325-
326 (1974); Emporium Capwell Co v Western Addition Community
Organization, 420 U S 50 (1975); Sheraton-Kauai Corporation v. N.L RIB,
429 F 2d 1352, 1357 (C.A 9, 1970), Local # 1547, International , Brotherhood
of Electrical Workers„AFL-C19 v. Local #959, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers, Independent, 507 F.2d
872, 877-878,(C A'. 9, 1974) ,
14 Waterfront Guard Association, Local 1852, supra
3. As to the alleged violation of Section 8(b)(3)
Section 8(b)(3) of the Act makes it an unfair labor
practice for a union "to refuse to bargain collectively with
an employer, provided it is the [statutory ] representative of
his employees." Section 9(b) assigns the Board responsibili-
ty for defining the, units in which collective bargaining .may
appropriately be conducted and,the Board's determina-
tions are, conclusive - on the parties.15 However, an
appropriate unit description may subsequently be changed
"by agreement of the parties; if the process of alteration
involves no disruption of the bargaining--process or
obstruction on commerce and if the Board does not disturb
the agreement in a subsequent representation proceed-
ing." 16 Because proposals relating to employees outside the
appropriate unit defined by the Board are only permissive
subjects of bargaining,17 it is. unlawful for either an
employer or a union to "insist upon" such inatters.18 Thus,
a breach of the obligation to bargain collectively occurs
"when, after the Board has decided wliai the appropriate
bargaining unit is, one party over'the objection of the other
demands a change in that unit.',' 19 'The vice in such
conduct is that it "denies the Board th[e ] ultimate control
of the bargaining, unit and disrupts the bargaining process
itself." 20
In this case the complained of conduct is that the Union
on November 6, 1973, demanded the discharge of
Scarpone and Thysie,, who then were employed as
mechanics by Lincoln-Mercury Corp. The Union was not
directly seeking representational rights with respect „to the
employees of Lincoln-Mercury Corp. and by this action
alone was not refusing to bargain with -Stamford for its,
employees alone. Although implicit in the Union's demand
for the discharge of the two employees is an assertion that
it, represents, the employees of Lincoln-Mercury Corp.,
there is no evidence that the Union's demand has disrupted
the bargaining relationship between the Union and
Stamford. In the circumstances, I question whether there
was a violation of Section 8(b)(3) on the, part of the
Umon.21 General Counsel argues that Sperry Systems
15 Brown v. Pacific Telephone and Telegraph Compnay, 218 , F.2d 542, 544
(C A 9, 1954), Charles T Douds, keg. Dir. v International Longshoremen's
Association, Independent [New York Shipping Assn], 241 F 2d 278, 282 (C.A
2, 1957)
Is Douds v .. International Longshoremen's-Association, supra
17 District 50, United Mine Workers of America and Local 15173, et al.
(Central Soya Company, Inc'), 142 NLRB 930, 939 (1963)
18 N.L R B. v. Wooster Division of Borg-Warner Corporation, 356 U S 342
(1958)
19 Douds v International Longshoremen's Assoeiatign, supra at 283
20 Ibid See also International Longshoremen's Association Ind [New York
Shipping Association] v. N LR B, 277 F 2d',681, 683 (C.A.D C, 1960);'
AFL-CIO Joint Negotiating Committee- for Phelps Dodge [Phelps Dodge,
Corporation] y N LRB, 470 F 2d 722, 726 (C A 3, 1972), cert. denied 409
U S 1059 (1972), Smith Steel Workers, Directly Affiliated Local Union
19896, AFL-CIO v A 0 Smith Corporation, 420 F 26,,1 (C A. 7, 1969)
21 Whether there has been a refusal to bargain collectively is largely a
factual issue. Various principles have been enunciated by the Board and the
courts to guide the determination-of such issue As an example, it has been
established that a unilateral alteration of a condition of employment is
tantamount to a refusal to bargain. N,L R B v Benne Katz, etc, 369 U S
736 (1962). A request to modify a unit certified by the Board, although not
necessarily unlawful, is not a mandatory subject of bargaining Therefore, as
the appropriate unit in this case is confined to the employees of Stamford,
LOCAL 259, UNITED AUTOMOBILE WORKERS 661I'll
Management Division, Sperry Rand Corporation v.
N.L.R.B.,22 supports his contention that the facts here spell
out a violation of Section 8(b)(3). In that case the court
held that "[d]emands by a union to represent employees
outside the certified union are unfair labor practices even if
no disruption occurs."23 Such proposition would seem to
be contrary to the weight of authority and contrary to the
position taken by the majority of the Board in the same
case. As I find below that the operative events in this case
occurred more than 6 months before the filing of the initial
charge with the Board and therefore the complaint is time
barred, it is unnecessary for me to determine whether the
court's' decision in Sperry Rand represents the present state
of the law and whether the facts herein fall within the
principles enunciated in that case.
4. As to Section 10(b)
As the initial charge in this case was filed on December
6, 1974, the allegations in the complaint cannot be founded
upon events occurring before June 7, 1974. On November
6, 1973, the Union wrote to Stamford demanding the
discharge of Scarpone and Thysie. This demand is the
underpinning of the complaint. When the two men were
not discharged the Union initiated an arbitration proceed-
ing. The hearing in that matter took place on February 5,
1974, and the arbitrator issued his award on April 12; 1974.
All these events took place outside the 6-month limitations
period. In September 1974 the Union filed a petition in the
Supreme Court of the State of New York to confirm the
arbitrator's award. This is the only action on the part of the
Union which occurred within the 6-month limitations
period. For two reasons I find that the complaint is time
barred by Section 10(b).
First, the Board will not use its processes to deny a party
access to the courts even where it is possible to spell out an
infringement upon employees' statutory rights by reason of
such suit. The Board has stated that it "should accommo-
date its enforcement of the Act to the right of all persons to
litigate their claims in court, rather than condemn the
exercise of such right as an unfair labor practice." 24 Since
"the Taylor case, the Board has consistently held that the
filing of a civil suit cannot be found to be an unfair labor
practice." 25 In accordance with this principle, the state
court proceeding initiated by the Union to confirm the
arbitrator's award may not be found to constitute an unfair
labor practice. As no other event from which an unfair
the Union may not hold "negotiations hostage to a demand for a
nonmandatory subject," to wit, the enlargement of the unit to include
employees of Lincoln-Mercury Corp. International Union of Operating
Engineers, Locals 542, 542-A, 542-B (York County Bridge, Inc.), 216 NLRB
No. 67 (1975). -The Union's demand upon Stamford to discharge two
employees of Lincoln-Mercury Corp. is not legally enforceable unless such
employees are included in the unit covered by the contract between the
Union and Stamford, and I have found that they are not. (Such demand, in
the circumstances of this case, is alleged to be a violation of Sec. 8(b)(2) and
(1)(A).) However, it does not follow that while the Union is pressing such
demand it would refuse to negotiate with Stamford with respect to the unit
certified by the Board and there is no presumption that it would do so. See
Local No. 447, Plumbers (Malbaff Landscape Construction), 172 NLRB 128
(1968). Accordingly, by merely demanding the discharge of Scarpone and
Thysie and by not otherwise seeking to compel Stamford to bargain with
respect to the employees of Lincoln-Mercury Corp. there is a question as to
whether the Union has refused to bargain collectively within the meaning of
labor practice may be spelled out occurred within the
limitations period, the complaint must fall.
Second, as the arbitrator's award is not unlawful on its
face, the state court proceeding brought by the Union to
confirm the award in and of itself cannot be found
unlawful. Any violation'of the Act that can be constructed
from the confirmation proceeding is entirely dependent on
the antecedent events which are time barred. Because the
gravamen of the unfair labor practice complained of lies in
facts and events occurring during the barred period the
complaint must fall. The lead case on this subject is Local'
Lodge No. 1424, International Association of Machinists,
AFL-CIO, et al. [Bryan Mfg. Co.] v. N.L.RB., 362 U.S.
411, 416-417 (1960). There the Supreme Court distin-
guished between two situations.
The first is one where occurrences within the six-month
limitations period in and of themselves may constitute,
as a substantive matter, unfair labor practices. There,
earlier events may be utilized to shed light on the true
character of matters occurring within the limitations
period; and for that purpose § 10(b) ordinarily does not
bar such evidentiary use of anterior events [footnote
omitted]. The second situation is that where conduct
occurring within the limitations period can be charged
to be an unfair labor practice only through reliance on
an earlier unfair labor practice. There the use of the
earlier unfair labor practice is not merely "evidentiary,"
since it does not simply lay bare a putative current
unfair labor practice. Rather, it serves to cloak with
illegality that which was otherwise lawful. And where a
complaint based upon that earlier event is time barred,
to permit the event itself to be so used in effect results
in reviving a legally defunct unfair labor practice.
A finding of violation in this case is inescapably grounded
on events predating the limitations period and therefore is
directly at odds with the purposes of the Section 10(b)
proviso.26
General Counsel, citing Chauffeurs, Teamsters and
Helpers "General" Local No. 200, affiliated with Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (State', Sand and Gravel Company;
Hillview Sand and Gravel, Inc), 155 NLRB 273 (1965),
argues that until the employee is actually discharged
pursuant to the Union's demand the 6-month limitations
period does not begin to run. I find no merit to this
Sec. 8(a)(3). Local 259, international union, UnitedAutomobile, Aircraft and
Agricultural Implement Workers of America, UA W, AFL-CIO (Fanelli Ford
Sales, Inc.), 133 NLRB 1468 (1961).
22 492 F.2d 63 (C.A. 2, 1974), reversing Local 445, International Union of
Electrical, Radio and Machine Workers, AFL-CIO (Sperry Systems Manage-
ment Division, Sperry Rand Corporation), 202 NLRB 183 (1973)
23 Sperry Rand Corporation v. N.L.R.B, supra at fn. 4.
24 Clyde Taylor, d/b/a Clyde Taylor Company, 127 NLRB 103, 109
(1960), cited with approval in N L.R.B v. Nash-Finch Co., d/b/a Jack & Jill
Stores, 404 U.S. 138, 142 (1971), and Los Angeles Building & Construction
Trades Council, AFL-CIO,- IBEW, Local 11 (Noble Electric), 217 NLRB No.
139 (1975). See also Smith Steel Workers v. A O. Smith Corporation, 420
F.2d 1, 9 (C.A. 7, 1969).
25 United Aircraft Corporation (Pratt and Whitney Division), 192 NLRB
382, 384 (1971).
26 Cf. Local 1101 Communications Workers of America, AFL-CIO (New
York Telephone Company), 208 NLRB 267 (1974).
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
argument, which is at complete odds with the purpose of
the Section 10(b) proviso. General Counsel fails to
distinguish between the two separate unfair labor practices
described in Section 8(b)(2), namely, an attempt to cause a
discharge and causing a discharge. General Counsel
further argues that the arbitrator's award is not self-
enforcing, that the Union must -take an additional
affirmative step in order to perfect the award, and that
"f i ]n short, the Union's action of going to arbitration and
obtaining an award cannot constitute a final transaction
under the laws of the State of New York." I find no merit
to this argument. The issue is what conduct on the part of
the Union constituted an "attempt to cause" within the
meaning of Section 8(b)(2). If the November 6, 1973, letter
alone was not an "attempt to cause," the arbitration
proceeding added to the letter without more constituted an
"attempt to cause" and the 10(b) period thus began to run
no later than from the date of the arbitrator's award.27
General Counsel finally,argues that the Board applies a
"continuing violation" theory to Section 8(a)(5) and the
same principle should be applied to Section 8(b)(3). In that
connection there are cases where each demand by, the
union to negotiate has been held to revive an underlying
unfair labor practice, on the part of the employer who
unlawfully refuses to bargain collectively and the short-
hand phrase, "continuing obligation" or "continuing
violation," has been used to describe such situations. Two
recent decisions discuss this principle at some length:
N.L.R. B. v. Basic Wire Products, Inc., 516 F.2d 261 (C.A. 6,
1975); N. L. R. B. v. R. L. Sweet Lumber Company, et al., 515
F.2d 785 (C.A. 10, 1975). However the state court action
initiated by the Union in the instant matter does not
27 This case is unlike International Brotherhood of Electrical Workers,
Local Union 716 (James 0 Vestal), 203 NLRB 333 (1972), where the Board
held that a umon's decision to fine a member was not completed and did
not become final until an intraumon appellate decision had been rendered.
In that case the Board reiterated the principle that "where the union's
appellate procedure of review is a `procedural step necessary to establish
with finality the propriety of the fines themselves,' such review will form the
basis for a separate cause of action if it occurs within the 10(b) period."
However, when the „only "post-10(b) action" is threats to sue and the
institution of legal proceedings to collect an otherwise unlawfully exacted
fine, the complaint will be dismissed Communications Workers of America,
Local 9511 (Pacific Telephone and Telegraph Company), 188 NLRB 433
(1971); United Steelworkers of America, AFL-CIO, and its. affiliated Local
constitute such revival because the necessary elements of
an unlawful refusal to bargain cannot be spelled out from
the confirmation proceeding alone.
I find that the unfair labor practices alleged in the
complaint are time barred as all material events relating
thereto occurred more than 6 months before the filing of
the charges.
CONCLUSIONS OF LAW
1. Stamford Motors Inc. and Lincoln Mercury of
Stamford Inc. do not constitute a single employer within
the meaning of the Act.
2. Local 259 United Automobile Workers, UAW, does
not represent any employees of Lincoln Mercury of
Stamford Inc.
3. The collective-bargaming agreement between Stam-
ford Motors Inc. and Local 259 United Automobile
Workers, UAW, does not cover any employees of Lincoln
Mercury of Stamford Inc.
4. The unfair labor practices alleged in the complaint in
this proceeding occurred more than 6 months prior to the
filing of the initial charge with the ^ Board in this
proceeding.
Upon the , basis of the foregoing findings of fact,
conclusions of law, and the entire record in this proceed-
ing, and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended: ^ ,
ORDER 28
The complaint herein is dismissed in its entirety.
1114 (Harnischfeger Corporation), 187 NLRB 22 (1970). But see Luther W
Shumate et al [Union Carbide Corporation] v N L R B, 452 F.2d 717 (C A
4, 1971), reversing 180 NLRB 875 (1970) and 186 NLRB 890 (1970). Cf
Wisconsin River Valley District Council of the United Brotherhood of
Carpenters and Joiners of America (Skippy Enterprises, Inc), 211 NLRB 222
(1974).
28 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 findings,
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.