Seattle Automotive Wholesaler Association

National Labor Relations Board - Board DecisionsFeb 25, 1963

140 N.L.R.B. 1393 (N.L.R.B. 1963)

SEATTLE AUTOMOTIVE WHOLESALERS ASSOCIATION, ETC. 1393 Seattle Automotive Wholesalers Association ; Colyear Motor Sales; Fremont Electric Co .; General Parts Co.; Huletz Elec- tric; McDonald & Co.; Motor Car Supply; Motor Parts Ma- chine Co.; Motor Specialty Co.; Piston Service, Inc .; Regalia Auto Parts; Charles Stewart, Inc.; Timken Roller Bearing Co.; United Motors and Automobile Drivers & Demonstrators, Local Union No. 882, International Brotherhood of Teamsters, Chauffeurs , Warehousemen & Helpers of America. Case No. 19-CA-?466. February 25, 1963 DECISION AND ORDER On November 28, 1962, Trial Examiner Martin S. Bennett issued an Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the alleged unfair labor practices and recommending that the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report. Thereafter, the Gen- eral Counsel filed exceptions to the Intermediate Report and a brief in support thereof, the Respondents filed a brief in support of the Intermediate Report, and the Respondent, General Motors Corpora- tion, United Motors Service, filed a statement in opposition to the General Counsel's exceptions to the Intermediate Report. The Board 1 has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. [The Board dismissed the complaint.] , Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers herein to a three -member panel [ Chairman McCulloch and Members Leedom and Brown]. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This case was heard at Seattle, Washington, on October 2, 1962. The complaint, issued September 7, 1962, and based upon a charge filed June 28, 1962, alleged that Colyear Motor Sales, Fremont Electric Co., General Parts Co., Huletz Electric, McDonald & Co., Motor Car Supply, Motor Parts Machine Co., Motor Specialty Co., Piston Service, Inc., Regalia Auto Parts, Charles Stewart, Inc., Timken Roller Bearing Co., and United Motors, herein called Respondent Companies, and Seattle Automotive Wholesalers Association, herein called Respondent Association, had engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the National Labor Relations Act, by refusing, on and after June 8, 1962, to bargain with Automobile Drivers & Demonstrators, Local Union No. 882, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of Amer- ica, herein called the Union, as the representative of the office clerical employees, with certain exclusions, of Respondent Companies, the latter being members of Re- 140 NLRB No 1 42 1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent Association. Oral argument was waived at the close of the hearing and briefs have been submitted by the General Counsel and by Respondents. Upon the basis of the entire record in the case, and from my observation of the witnesses , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENTS Seattle Automotive Wholesalers Association is a Washington corporation which has represented Respondent Companies in collective bargaining. Each of Respond- ent Companies annually purchases products valued in excess of $50,000, which are directly or indirectly shipped to it from points outside the State of Washington. I find that the operations of Respondents affect commerce within the meaning of Section 2(6) and (7) of the Act and that it would effectuate the purposes of the Act to assert jurisdiction herein. H. THE LABOR ORGANIZATION INVOLVED Automobile Drivers & Demonstrators, Local Union No. 882, International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. The record discloses, and I find, that Local 882, which represents automobile salesmen, has established a division known as Local 882-A which represents office clerical employees, the group directly involved herein. III. THE UNFAIR LABOR PRACTICES A. The issue; introduction The issue in this case is whether Respondent Companies and Respondent As- sociation withdrew from multiemployer bargaining conducted by Respondent As- sociation in behalf of its members at an untimely or inappropriate time, viz, on or about June 8, 1962, and thereby unlawfully refused to bargain with the Charging Union as the representative of office clericals employed by Respondent Companies. Respondents admit said withdrawal from negotiations but claim that it was timely on the indicated date. The General Counsel expressly disclaims any contention of a refusal to bargain on an individual employer basis and there is no evidence of any request for such bargaining. B. The facts Respondent Seattle Automotive Wholesalers Association, herein called S.A.W.A., is a trade association whose membership consists of approximately 30 firms engaged in the distribution of automobile parts. It has carried on trade association activities and has represented its employer members in collective bargaining with three labor organizations, viz, Local 882-A, office workers, a division of the Charging Party herein; Local 289, machinists or mechanics; and Local 44, garage employees other than mechanics or clericals. All three are Teamster affiliates. Since 1959, S.A.W.A. has confined its activities solely to collective-bargaining activities. I deem it noteworthy that while each of the three units for which S.A.W.A. has bargained and signed a single contract was a multiemployer unit, the size of the unit has varied in each case. Thus, the Local 44 unit consisted of 28 firms, the Local 289 unit consisted of 18 firms, and that of Local 882-A included only 14. It is undisputed that each of the three contracts has resulted from separate negotiations and that each includes provisions not common to the other contracts. It is to be further noted that no employer who belongs to S.A.W.A. is a member of Metropolitan Automobile Dealers Association, herein called M.A.D.A., another trade association in the area on whose negotiations with labor organizations the General Counsel places basic reliance herein. The two associations are wholly unrelated and the membership of M.A.D.A. consists only of employers who sell cars and trucks The record discloses that M.A D.A. conducts separate bargaining nego- tiations with five separate unions for separate units in the Seattle area. There has been no contract between Local 882-A and M.A.D.A. applicable to clerical em- ployees employed by employer members of M.A D.A. since May 1958. Focusing attention on the parties directly involved herein, the record discloses the following. The last contract between Respondent Association, S A.W.A., and Local 882-A was signed in September 1959 and was later extended to May 1, 1962. On February 28, 1962, Local 882-A duly served notice upon Respondent Association of its desire to open the contract. On March 27, Respondent Association, by its labor relations representative, C. Carey Donworth, acknowledged receipt of the SEATTLE AUTOMOTIVE WHOLESALERS ASSOCIATION, ETC. 1395 letter and asked that the Charging Union contact Donworth "when you wish to sched- ule a meeting in connection with this matter." It is undisputed, and I find, that this notice to Respondent Association by the Charging Union served to terminate the contract between the parties on May 1, 1962, as provided in the contract. No negotiations or meetings for a new contract, in the literal sense, were held between these parties at any time during 1962. It is significant that, contrary to practice in previous years, no demands for a new contract were served upon Respond- ent Association by Local 882-A. As will appear, the General Counsel attributes what amounts to a vicarious responsibility to Respondent Association which is predicated upon negotiations between sister labor organizations of the Charging Union with M.A D.A. for different bargaining units. At a meeting held on June 4, 1962, and admittedly prior to the service of any demands upon it by Local 882-A, Respondent Association voted to cease function- ing as a collective-bargaining agency in behalf of its members in the unit which negotiated with Local 882-A, as well as for the employers which negotiated with Local 289 in a larger unit. No decision was made as to the still larger unit which dealt with Local 44. On or about that date, Local 882-A was orally advised of this decision; on June 8, formal written notice was sent to the Charging Union that S.A.W.A. would no longer represent its members in collective bargaining and that it "would appear appropriate for you to contact the individual firms heretofore represented by that Association with respect to negotiation of a labor contract." A similar notice was sent to Local 289 with respect to its unit. Since that date, Local 882-A has requested negotiations neither on a multiemployer nor on an individual employer basis. The theory of the General Counsel amounts to the following Traditionally, negotiations between Respondent Association and the Charging Union commenced after negotiations between M.A.D.A. and the various sister locals with which it bargained for different units came to an end. During the course of the latter nego- tiations, between March and May 1962, statements were made by Donworth, the labor relations consultant for S.A W.A i which amounted to a commitment by him that certain clauses than being negotiated would also be applicable to the contract to be later negotiated between the Charging Union and S.A.W.A Stated otherwise, these undertakings allegedly amounted to a commencement of negotiations between Local 882-A and Respondent Association. It is then contended that Respondent Association and its members are, in essence, estopped from subsequently withdrawing from multiemployer bargaining in favor of individual employer bargaining because it was attempted at a time which had then become inappropriate. Secretary-Treasurer Eugene Hauck of Local 882 testified that after March 27, 1962, and prior to June 8, he had been meeting with Donworth. It is clear however, and I find, that these meetings were not between Hauck and Donworth in behalf of S A W A. These were meetings between Donworth as negotiator for M A D A. and a number of representatives of various labor organizations which negotiate with M.A D A for the employees of the automobile and truck dealers in various units other than the instant one. I further find that not only was this not bargaining between the parties directly involved herein, but that at no time in these meetings did Hauck, who merely sat in with the other labor representatives, make any specific request for negotiations with Respondent Association. The most that can be drawn from this record to support the position of the General Counsel is that Hauck stated during these negotiations that certain demands then being negotiated by these other parties would also be raised when negotiations commenced between the instant parties This was entirely consistent with the realities of the situation for, as Hauck testified, "Whatever the other locals got we got, because we were much the weaker group and this is why we were historically the last to negotiate or even the last to sign a contract." Hauck elsewhere conceded that there had been no actual negotiations with respect to the instant unit, but also claimed he told Donworth at various negotiating meetings that certain of his proposals would be the same as those made by Local 44, garage employees, and that he was ready to negotiate on these demands; to this Donworth replied that he would do so as soon as the M.A D A. negotiations were out of the wav. Hauck agreed with this inasmuch as it had been the historic practice. It is still clear, nevertheless, that there was no current demand for negotiations at that time with Respondent Association. Indeed, under the circumstances, there could i Donworth is retained to represent S A.W.A. In labor negotiations He Is executive secretary of M A.D A. but not of S A.W.A 681-492-63-vol, 140--89 1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be none as these were entirely separate associations which were negotiating with various different units. Hauck elsewhere testified that he was present at these meetings in behalf of the salesmen who were in an M.A.D.A. unit represented by Local 882 rather than by Local 882-A. He also testified that for reasons indicated above he could not present demands in behalf of Local 882-A while the other unions and units within M.A.D.A. were negotiating. He specifically identified two topics as coming up in these earlier negotiations Representatives of Local 44 and Local 289 were discussing a vacation benefit, and Hauck then spoke up and stated that this would be a "must" for the clericals in the S.A.W A. and Local 882-A negotiations. At a later date, during the same negotiations, Local 44 asked for an improved pension plan, and Hauck stated that Local 882-A would want the same plan. Hauck did not recall Donworth's reply except for a statement that it would have to be discussed with his employer committee. These demands were never submitted in writing or in any other manner by Local 882-A to Respondent Association. The General Counsel also presented the testimony of Secretary-Treasurer Bill Richards and Business Representative Elmer Wainey of Garage Employees Local 44, but it lends him little support. The testimony of Wainey discloses only that Hauck was not present at negotiations between Local 44 and Respondent Association, and that the demands of Local 882-A were not discussed Wainey did testify that during negotiations between Local 44 and M.A.D.A. someone made comments about the pay for office clericals in the parts houses, this being the instant unit. He did not identify the speaker, not Hauck, and did not recall the precise remarks. The General Counsel also presented the testimony of Business Representative Howard Hein of Local 289, Machinists. He testified that he sat in at a meeting in April when Local 44 presented its demands to M.A.D.A. Representatives of Local 44 asked if these demands would apply to their S.A.W.A. unit and Hauck then asked about its application to Local 882-A and its unit. Hein recalled generally that Don- worth replied that the settlement would apply. Donworth disputed much of this He testified that the first time anything was said to him about a meeting between the instant parties was 1 to 3 days before June 4 He met with Hauck at that time on another matter and Hauck asked about a meeting for the instant unit. Donworth then informed him that Respondent Association was considering the abandonment of association bargaining. As indicated, this was voted on June 4, and the Charging Union was so notified on June 8. Similar action and notification was taken on the same date by Respondent Association as to Local 289. Donworth did not recall any earlier request by Hauck for a meeting and doubted that it had been made, because he recalled advising the chairman of his employer- negotiating committee on several occasions during this period that no requests for a meeting had been made. It may be noted that over the years of negotiations, prior to 1959, a contract was never reached between the Charging Union and S.A.W.A. prior to an agreement be- ing reached with M A D A As noted, Local 882-A and M.A.D A. have been unable to cone to an agreement since 1959. C. Conclusions As found, no express demands for negotiations between the instant parties were made and no demands presented prior to June 8, the date that Respondent Associa- tion notified the Charging Union that it was abandoning multiemployer bargaining. In a posture most favorable to the General Counsel, the record only discloses that the negotiator for M A.D A. was previously advised that several of the same de- mands might be presented by Local 882-A to S A W.A. at a later date. There is not an iota of evidence that the M.A D.A. negotiations with other unions were agreed to or even considered as being binding upon Local 882-A and Re- spondent Association. Nor is there a scintilla of evidence that these other settle- ments, without further separate negotiations, were to be applicable to the office clerical union which is directly involved herein. Moreover, this record discloses that employees in these various units were differently rated. Thus, the office clericals represented by Local 882-A received a monthly salary; employees represented by Lo- cal 44 were rated in six or seven hourly paid classifications; and there was a single hourly pay scale for the employees represented by Local 289. I find on a preponderance of the evidence that there was no implied or express understanding or agreement between the parties to defer negotiations between Local 882-A and Respondent Association until the other negotiations of other employers with other labor organizations in other units were out of the way I further find that in no way did these earlier negotiations constitute negotiations between the instant parties, as is demonstrated by the service of separate demands, the holding FARIBO TURKEYS, INC. 1397 of separate negotiations, and the entry into separate and different contracts. I further find that at the most, casual remarks in other negotiations on two related issues, un- der the circumstances present herein, can hardly constitute an estoppel so as to pre- vent the withdrawal action later undertaken by Respondent Association. Present Board policy is reflected in Retail Associates, Inc., 120 NLRB 388, which indicates that an employer may withdraw from a multiemployer bargaining unit if it unequivocally takes such :a step at an appropriate time. When actual bargaining has begun, the time then becomes inappropriate, except by mutual consent. The Board has pointed out, "It is well established that a single employer unit becomes appropriate when the employer, at an appropriate time, manifests an intention to withdraw from group bargaining and to pursue an individual course of action with respect to its labor relations." Cooks, Waiters and Waitresses Union, Local 327; et at. (Greater Peoria Restaurant Association), 131 NLRB 198. The Board has continued to stress that a withdrawal from such a multiemployer unit is recognized as timely if it is taken before the commencement of negotiations and after the expiration of a contract. Northern Nevada Chapter, National Elec- trical Contractors Association and Represented Employers, 131 NLRB 550. The Board has elsewhere put it that such a withdrawal is "timely and effective when it occurred substantially before actual joint negotiations and consummation of a con- tract involving that unit." Detroit Window Cleaners Union, Local 139, etc. (Dae- lyte Service Company), 126 NLRB 63. See also Goldeen.'s, Inc., 134 NLRB 770. To sum up, the June 8 letter following upon the June 4 decision constituted full notice of an abandonment of ,multiemployer bargaining. It was timely submitted prior to any agreed-upon date for the commencement of negotiations and, in fact, there was no such date. Moreover, no actual demands had been made upon Re- spondent Association by the Charging Union. Nor do I see any basis for the ap- plication of what amounts to an equitable estoppel based upon any conduct by Re- spondent Association, as bargaining had not begun in the unit named herein. I shall accordingly recommend that the instant complaint be dismissed. CONCLUSIONS OF LAW 1. The operations of Respondents affect commerce within the meaning of Section 2(6) and (7) of the Act. 2. Automobile Drivers & Demonstrators, Local Union No. 882, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondents have not engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. RECOMMENDATIONS In view of the foregoing findings of fact and conclusions of law , it is recommended that the complaint be dismissed in its entirety. Faribo Turkeys, Inc. and United Packinghouse , Food, and Allied Workers, AFL-CIO, Petitioner. Case No. 18-IBC-5093. Febru- ary 25, 1963 DECISION ON REVIEW, ORDER, AND DIRECTION OF SECOND ELECTION Pursuant to a Supplemental Decision and Direction of Election is- sued by the Regional Director for the Eighteenth Region, an election by secret ballot was conducted on September 21, 1962, under the direc- tion and the supervision of the Regional Director. Upon the conclu- sion of the election the parties were furnished a tally of ballots which showed that of approximately 100 eligible voters, 41 votes were cast for, and 51 votes were cast against, the Petitioner, and 1 ballot was 140 NLRB No. 13 3.