American Sunroof/Customcraft, Inc.

National Labor Relations Board - Board Decisions

Aug 6, 1979

243 N.L.R.B. 1128 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Sunroof Corporation-West Coast, Inc.,
d/b/a American Sunroof/Customcraft, Inc. and In-
ternational Union, United Automobile, Aerospace
and Agricultural Implement Workers of America,
United Auto Workers, Petitioner. Case 20-RC-
14700
August 6, 1979
DECISION ON REVIEW
BY CHAIRMAN FANNING AND MEMBERS JENKINS,
PENELLO, ANI) TRUESDAI.E
On December 26, 1978, the Acting Regional Direc-
tor for Region 20 issued a Decision and Direction of
Election in which he found, inter alia, that a contract
between the Employer and Teamsters Automotive
Employees Union, Local 665, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (hereinafter Teamsters Local
665) was not a bar to the petitioned-for election. The
Acting Regional Director directed an election in a
unit of the Employer's production and maintenance
employees, including drivers and janitors, but exclud-
ing salesmen, office clerical employees, guards, and
supervisors as defined in the National Labor Rela-
tions Act, as amended.
Thereafter, in accordance with Section 102.67 of
the National Labor Relations Board Rules and Regu-
lations, Series 8, as amended, the Employer filed a
timely request for review of the Acting Regional Di-
rector's decision, alleging, inter alia, that, in giving
effect to the Teamsters Local 665 disclaimer and by
including the drivers in the bargaining unit, the Act-
ing Regional Director made findings of fact which
were clearly erroneous and departed from officially
reported precedent. By telegraphic order dated Feb-
ruary 2, 1979, the Board granted the Employer's re-
quest for review. On January 26, 1979, the petitioned-
for election was conducted, and the ballots were im-
pounded pending decision on review. Thereafter, Pe-
titioner filed a brief on review.
On May 23, 1979, Teamsters Local 665 filed a mo-
tion to intervene and for time to file a brief. On May
24, 1979, the Board granted Teamsters Local 665 per-
mission to file an amicus brief. Thereafter, Teamsters
Local 665 filed an amicus brief and a motion for con-
sideration by the full Board and for oral argument,'
and the Employer filed a brief in answer to the Team-
sters Local 665 amicus brief.
I Teamsters Local 665's request for oral argument is hereby denied as the
record, the request for review, and the briefs adequately present the issues
and the positions of the parties. Teamsters Local 665's motion for consider-
ation by the full Board is also hereby denied.
The Board has considered the entire record in this
proceeding, including the briefs on review, with re-
spect to the issues under review and makes the follow-
ing findings:
1. The Employer is engaged in the business of in-
stalling sunroofs and vinyl roofs on automobiles and
employs approximately 40 employees at its South San
Francisco, California, facility. In July 1976. pursuant
to a request for recognition, the Employer recognized
Teamsters Local 665 as the exclusive bargaining rep-
resentative of the Employer's production and mainte-
nance employees. Subsequent to this voluntary recog-
nition, the Employer and Teamsters Local 665
entered into a collective-bargaining agreement cover-
ing the employees in the recognized unit. The con-
tract provided that it would be effective from Novem-
ber 18, 1976, to November 18, 1979, and from year to
year thereafter with the provision that, should either
party desire to terminate the agreement or modify
any part thereof, it would notify the other party not
less than 60 days prior to the end of the appropriate
yearly period. The contract also included a reopener
provision which provided that the contract could be
reopened on October 1, 1977, and on October 1, 1978,
for the sole purpose of renegotiating wage rates for
the subsequent year. The employees ratified the
agreement on November 19. 1976. In July 1977 and
July 1978, negotiations on wage rates were con-
ducted, and agreements on increased wage were
reached.
On July 31, 1978, employee Melvin Dimich filed a
deauthorization petition under Section 9(e)( I) of the
Act. This petition, which was signed by 39 of the Em-
ployer's employees, requested an election on whether
the employees desire to withdraw the union-shop pro-
vision of the above-mentioned collective-hargaining
agreement. On August 16, 1978, counsel for Team-
sters Local 665 notified the Employer that Teamsters
Local 665 disclaimed and waived any and all interest
in representing, and any right to represent, the Em-
ployer's production and maintenance employees.
Also on August 16, counsel for Teamsters Local 665
notified the Regional Director for Region 20 of the
disclaimer, requesting dismissal of the deauthoriza-
tion petition and stating, "Local 665 is of the position
that the collective bargaining agreement, and particu-
larly Article II (union Security), are no longer oper-
able." On August 23, counsel for the Employer noti-
fied Teamsters Local 665 and the Regional Director
that the Employer did not accept the disclaimer and
intended to honor, and hold Teamsters Local 665 to,
the collective-bargaining agreement. By letter dated
September 8, 1978, the Regional Director notified all
parties that the deauthorization petition had been
withdrawn.
243 NLRB No. 172
1128
AMERICAN SUNROOF
Since the date of its disclaimer, Teamsters Local
665 has taken no action inconsistent with the dis-
claimer. The Employer continued to deduct union
dues from its employees' paychecks and forward the
dues to Teamsters Local 665. Although Teamsters
Local 665 returned the check for August 1978 dues to
the Employer, it has held the subsequently remitted
dues in escrow pending resolution of its representa-
tive status.
On October 2, 1978, Petitioner filed the petition in
the instant proceeding, requesting an election among
the Employer's production and maintenance employ-
ees. Teamsters Local 665 was notified of the hearing
on this petition but did not participate.
In its brief in support of its request for review of the
Acting Regional Director's Decision and Direction of
Election, the Employer asserts that the Acting Re-
gional Director departed from the Board's policy of
refusing to permit parties to collective-bargaining
agreements to escape their terms through use of
Board processes. The Employer's position is that, as
evidenced by the filing of the deauthorization peti-
tion, its employees were dissatisfied with the terms of
the contract and with their representative, and that
Teamsters Local 665's disclaimer was made in retali-
ation for the filing of the petition. Thus, the Employer
argues, by giving effect to the disclaimer and finding
the contract not to be a bar to an election, the Acting
Regional Director sanctioned not only such retali-
atory conduct, but also employee and union circum-
vention of the contract-bar doctrine.
In support of its position that a union cannot avoid
the contract-bar doctrine by merely disclaiming inter-
est in the employees covered by the contract, the Em-
ployer cites Mack Trucks, Inc., 209 NLRB 1003
(1974), and Gate City Optical Company,. A Division of
Cole National Corporation, 175 NLRB 1059 (1969). In
our view, however, these cases are not controlling.2
As stated by the Acting Regional Director in this
case, the essential fact in Mack Trucks was that the
disclaimer by the contracting union resulted from a
collusive agreement between the contracting union
and the union which was seeking an election. No such
collusive disclaimer is present here. In this regard, the
record clearly shows that Petitioner had no contract
with Teamsters Local 665 prior to August 16, 1978,
the date of the disclaimer. Gate City Optical did not
involve a disclaimer by a contracting union; rather, it
involved a situation in which the parties agreed that
the contracting union was defunct. The Board, in re-
fusing to order an election in that case, held that the
: Chairman Fanning. who dissented in Mack Trucks and Gate CtA Opti-
cal, would have found the collective-bargaining agreements in those cases
not to be bars to the petitions therein.
contracting union was not defunct in the normal
sense, but had merely transferred its affiliation from
the contracting international union to the interna-
tional union seeking the election. Under those cir-
cumstances, the Board held, no question concerning
representation requiring an election existed. It is clear
from the record in the instant case that Teamsters
Local 665 has not attempted to transfer its affiliation
to Petitioner.
Absent special circumstances, such as those in
Mack Trucks and Gate City Optical, and absent any
actions on the part of Teamsters Local 665 inconsis-
tent with its disclaimer, we find no basis for not giving
the disclaimer full effect. As we have held in the past.
a contract does not bar an election when the contract-
ing union has properly disclaimed interest in the em-
ployees covered by the contract.' AccordinglN, we at-
firm the Acting Regional Director's finding that the
collective-bargaining agreement between the Em-
ployer and Teamsters ocal 665 is not a bar to the
petitioned-for election.'
The Employer further asserts that, if the disclaimer
removes the contract as a bar and ift' the results of the
election reveal that Petitioner has been selected as
bargaining representative of the employees. the Board
should order that Petitioner is bound by. and must
administer, the collective-bargaining agreement be-
tween the Employer and Teamsters Local 665. It is
well settled. however, that when a union is decertified.
Plough. In,. 203 NLRB 121 1973. Uani.nl Shiphulhingq. In, and
The Maunalo, (mpun;. In. . 191 N LRB 786 1
9 7
11. I ionil B -Pr,,lut
Conyan,. 122 NIRB 334 (1958) See also 4malrgamated M.iar ('utters and
Butcher Rr'rkAmen i't North America, 1.,ial 15.8A FL (C'1 tF.astpoint Sea-
1liod C('mpani e . 208 NRB Rg 1974t
Member ruesdale agrees that. in the circumstances t his ase. he dis
claimer removes the contract as a bar to an election In so doing, Member
Truesdale finds East Manu/acturing (Corplrutron, 242 NLRB 5 t1979). distin-
guishahle from the instant case In Ear Manufact-ruring. the incumbent local
labor organization. which consisted onl, of the emplosees of the emplos er.
executed a disclaimer during the course o a hearing on another union's
petition to represent the emploees covered the incumbent's contract with
the employer Thus. in that case. the petitioning union conducted its organl-
zational activit). solicited its showing of interest, and filed Its petition prior
to the incumbent union's disclaimer In the instant case, the emploees did
not, as implied by the dissent. "persuade" Teamsters Local 665 to disclalm
Interest In them; rather. the employees merely exercised their statutory right
to petition for an election to deauthorize their representatie's union-shop
authorits. Having exercised this right, the emplovees then found themselves
abandoned by virtue of their representative's arm's-length disclaimer. The
record clearl) shows that the Petitioner had no contact with Teamsters I.ocIl
665 prior to the date of the disclaimer and filed its petition sceral eeks
after the disclaimer. In these circumstances. the purposes if the Act are nl
served by a result which would. n tact. leave the emploees with no repre-
sentation at all or the remainder of the term of' Teamsters I ilal t,05'r con-
tract.
'Our dissenting colleague cites the order of the I nited States Distrlct
Court for the Northern District of California in support ot his conclusion
that the contract herein is a bar to an election. However. as the court in that
decision acknowledged. its decision on the alhdily of the contract s not
binding on the Board in determining whether the contrac cnstitutes a bar
to an election In addition. in light ift our decision herein,. e find it unneces-
sary It) pass on Petitioner's contention that the contract is not a bar to an
election because t is unlawful on its face
1129
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or when an employer transfers its business to a suc-
cessor employer, the succeeding union or employer is
not bound by a prior contract, even if the terms of the
contract have not yet expired.5 The same principle
applies when an existing contract is held not to bar an
election, and a new union becomes the representative
of the employees previously covered by the contract.6
2. In its request for review, the Employer asserts
that its drivers should not be included in the bargain-
ing unit on the ground that they lack a community of
interest with the production and maintenance em-
ployees. We disagree.
At the time the collective-bargaining agreement be-
tween the Employer and Teamsters Local 665 was
negotiated, the Employer did not employ drivers or a
dispatcher.7 These positions apparently came into ex-
istence several months before the instant petition was
filed. The record clearly shows that the drivers share a
community of interest with the production and main-
tenance employees sufficient to warrant their inclu-
sion in the bargaining unit. Drivers, like production
and maintenance employees, are hourly paid and
punch a timeclock. All employees receive the same
fringe benefits and holidays. Although the drivers
spend most of their worktime picking up and deliver-
ing automobiles, they do occasionally perform "de-
tailing" work which has historically been performed
by production and maintenance employees. Similarly,
production and maintenance employees occasionally
pick up and deliver automobiles. Accordingly, as Pe-
titioner seeks to represent the drivers, and as the over-
all unit is clearly appropriate, we affirm the Acting
Regional Director's finding that the drivers should be
included.
We shall therefore remand this case to the Regional
Director for the purpose of opening and counting the
impounded ballots and, thereafter, issuing the appro-
priate certification.
MEMBER PENELLO, dissenting:
As the record in this case contains no evidence that
Teamsters Local 665 is defunct, I would find, con-
trary to my colleagues, that its disclaimer did not re-
move its collective-bargaining agreement with the
Employer as a bar to the petitioned-for election
herein.
The principle that a disclaimer will not operate to
remove a contract as a bar to an election, absent a
showing that the disclaimer union is defunct, was re-
See N.L.R.B. v. Burns International Security Services, Inc., et a., 406 U.S.
272, fn. 8 (1972), and accompanying text, wherein the Supreme Court re-
jected the Board's contention that a successor employer should be bound to
the terms of its predecessor's collective-bargaining agreement.
American Seating Company, 106 NLRB 250 (1953).
7The Acting Regional Director found, and on review the parties do not
dispute, that the dispatcher is a supervisor within the meaning of the Act.
cently reiterated in East Manuficturing Corporation,
242 NLRB 5 (1979). As the Board stated in that case,
this principle is based on "compelling policy consid-
erations which are a cornerstone of the statutory
scheme." Primary among these policy considerations
is industrial stability, a consideration which the con-
tract-bar doctrine, here at issue, was developed to
promote.
When a majority of employees in an appropriate
bargaining unit select an exclusive bargaining repre-
sentative, and the representative, on behalf of the em-
ployees, negotiates and executes an agreement with
the employer covering the wages, hours, and terms
and conditions of the employees' employment, that
agreement is a stabilizing force in the interrelation-
ships among the representative, the employees, and
the employer. In defining the employment conditions
for the term of the contract, the agreement reflects
not only the successful operation of the collective-
bargaining process, but also the substantial invest-
ments which the parties have made to their bargain-
ing relationship. In the interest of encouraging and
protecting the process and the relationship, the agree-
ment itself must be afforded some degree of integrity
and durability, and the parties must have confidence
that its provisions will be enforced during its negoti-
ated term.
A second "compelling policy consideration,"
against which the interest of industrial stability is bal-
anced when a contract is urged as a bar to an elec-
tion, is employee freedom of choice in selecting a bar-
gaining representative. Ordinarily, when a contract is
executed, postponement of the employees' right to se-
lect or change their representative is justified for a
reasonable period of time by the paramount interest
of contractual stability.8 The delay in the exercise of
employee freedom of choice preserves as much time
as possible during the term of a contract from the
potential disruption and uncertainty in labor relations
caused by a rival union's organizational activities. In
balancing the sometimes conflicting considerations of
stability and employee free choice, the Board has pro-
vided employees the opportunity, at reasonable and
predictable intervals, to reappraise and, if they so de-
sire, change their representative.9 The rules governing
when election petitions will be accepted by the Board
thus put the parties to a bargaining relationship and
any rival unions on notice as to the appropriate times
to organize for and seek such a change in representa-
tion.
The Board has recognized, however, that in some
circumstances a specific contract may not serve to
'See, e.g.. Paragon Products Corporation, 134 NLRB 662 (1961).
9 Deluxe Metal Furniture Company, 121 NLRB 995 (1958).
1130
AMI.RICAN St NROOF
stabilize industrial relations in the manner contem-
plated in the statutory scheme, and strict application
of the contract-bar doctrine, in those circumstances.
would unduly limit the right of employees to be rep-
resented by an organization of their own choosing.
Thus, exceptions to the contract-bar doctrine have
developed. A simple disclaimer of interest in the con-
tract by one of the parties thereto is not one of these
exceptions; rather, only in such cases as a schism,
defunctness. or a substantially expanded bargaining
unit is the contract no longer a stabilizing force and
the direction of an immediate election in the interest
of both restoring stability and assuring employees
their right to select their representative. Even in these
cases, the burden of establishing the need for an elec-
tion is heavy. In the case of a schism, there must be a
basic intraunion conflict, and the employer must be
confronted with two labor organization, each claim-
ing to be the organization previously chosen by the
employees as their representative.'0 In the case of
defunctness, the union must be both unable and un-
willing to represent the employees; inactivity, negli-
gence, a lack of members, or employee dissatisfaction
will not render an incumbent union defunct." And
where on expanding unit is at issue, a contract will
not bar election only where less than 30 percent of the
current employees were employed, and less than 50
percent of the current job classifications were in exis-
tence, at the time the contract was executed.'2
The result reached by the majority here, in the lan-
guage of East ManuJacturing, "impugns the integrity
of the collective-bargaining process and encourages
circumvention of our contract-bar doctrine." Under
the majority's decision, all collective-bargaining
agreements become contracts terminable at will.'1
Disgruntled or dissatisfied employees will at any time
be able to escape the terms of their contract and force
their employer to renegotiate employment conditions
by persuading their current representative to simply
disclaim interest in representing them, as the employ-
ees herein so persuaded Teamsters Local 665 by filing
'0 Hershey Chocolate Corporation, 121 NLRB 901 (1958).
" E.g., Road Materials, Inc., 193 NLRB 990 (1971): Crane and Breed Cas-
ket Company. 175 NLRB 206 (1969) Aircraft Turbine Senice, Inc., 173
NLRB 709 (1968). Moore Drop Forging Copan.v, 168 NLRB 984 (1967).
12 General Extrusion Company, Inc., General Bron:e Al.inrite Products
Corp., 121 NLRB 1165 (1958).
" Contracts which lack termination or duration provisions and contracts
which are terminable at will have long been held not to bar elections. Pacific
Coast Association of Pulp and Paper Manufacturers, 121 NLRB 990 (1958).
a deauthorization petition. The predictahilit, and sta-
bility in labor relations, supplied by mutual and bind-
ing cominitments contained in collectilxc-hargainilig
agreements and by our contract-bar principles. will
be frustrated b a lingering, if not persistent, threat
that one party will walk away from those commit-
ments.
In it amicus brief, Teamsters ocal 665 argues that
employee free choice is the single most important flac-
tor in this case, and that the mutual decision of the
employees and their representative to terminate their
relationship should be honored. I do not agree. The
employees selected Teamsters Local 665 as their rep-
resentative for purposes of collective bargaining, and.
as their representative, it is Teamsters Local 665
which is the party to the contract. Mutual assent of
the parties thereto will operate to remove a contract
as a bar to an election, as will circumstances which
establish one of the traditional exceptions to the con-
tract-bar doctrine. A unilateral disclaimer. however.
even if based on employee dissatisfaction with their
representative, will not. In this regard. I note that
when an employer becomes bound to a contract and
thereafter acquires a good-faith doubt that the con-
tracting union represents a majority of employees in
the relevant bargaining unit. the employer may not
lawfully refuse to abide by existing contract or unilat-
erally change the established terms and conditions of
employ ment.' 4
Contrary to Member Truesdale, I do not find East
Manu/iacturing distinguishable from this case. In both
cases, the viable, nondefunct incumbent union dis-
claimed interest in representing employees covered b
a collective-bargaining agreement in effect at the time
of the disclaimer. In both cases, the disclaimer re-
sulted from employee dissatisfaction with their repre-
sentative. As in East Manufacturing, the disclaimer
alone should not operate to remove the contract as a
bar to an election. Accordingly, I would not affirm
the Acting Regional Director's decision and would
order that the petition be dismissed.
' See. e.g.. Victor Miceli and Sam Miceli d/b:'a Riverside Produce ('om-
pan, 242 NLRB 615 (1979).
" Shortly after Petitioner AW filed its petition n this case. he Fmploer
filed an action in the United States District Court for the Northern District
of California seeking a declaratory judgment that its collectie-bargainine
agreement with Teamsters Local 665 was valid and enforceable Although
not binding on the Board, it is interesting to note that he court Issued an
order on May 25, 1979. holding the collective-bargaining agreement to e
valid and enforceable on the authority of East Manufacturing.
l l I