Billl Cook Buick, Inc.

National Labor Relations Board - Board Decisions

Jun 17, 1976

224 N.L.R.B. 1094 (N.L.R.B. 1976)

1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bill Cook Buick , Inc and Auto Mechanics , Local 701,
International Association of Machinists & Aero-
space Workers , AFL-CIO Case 13-CA-14705
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
June 17, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On March 30, 1976, Administrative Law Judge
James L Rose issued the attached Decision in this
proceeding Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
an answering brief to the 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, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order
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 and hereby
orders that the Respondent, Bill Cook Buick, Inc,
Arlington Heights, Illinois, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the said recommended Order
DECISION
STATEMENT OF THE CASE
JAMES L RosE, Administrative Law Judge This matter
was heard at Chicago, Illinois, on February 10, 1976, upon
the General Counsel's complaint I which alleged, in gener-
al terms, that the Respondent had withdrawn from a mul-
tiemployer bargaining association, during a time when that
association was negotiating with the Charging Party
Union, in violation of Section 8(a)(5) of the National La-
bor Relations Act, 29 U S C Sec 151, et seq
Upon the record as a whole, including statements and
arguments of counsel, and my observation of the witnesses,
I make the following
1 The complaint in Clem Boyle Automobiles Inc Case 13-CA-14708
which had been consolidated herewith was dismissed at the hearing by
agreement of the parties
Respondent, Bill Cook Buick, Inc, is an Illinois corpora-
tion engaged principally in the business of retail sale and
service of new and used automobiles During the past fiscal
year, which is a representative period, the Respondent in
the course of its business operations received gross reve-
nues in excess of $500,000 and during that period pur-
chased and received goods which originated from points
outside the State of Illinois valued in excess of $50,000
Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
Auto Mechanics, Local 701, International Association of
Machinists & Aerospace Workers, AFL-CIO, is admitted
by the Respondent to be, and I find is, a labor organization
within the meaning of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICE
A The Factual Situation
The entirety of General Counsel's case-in-chief was pre
sented by way of stipulations whereby the Respondent
changed its answer in certain material respects
The substance of the factual situation, as alleged and
admitted, is that the Respondent was a member of the New
Car Dealers Committee which, until at least August 1975,
was an agent of the Respondent within the meaning of
Section 2(13) of the Act The Committee engaged in nego-
tiations with the Union for a new collective-bargaining
agreement, the previous one having expired by its terms on
June 30, 1975
According to the testimony of C David Burns, the exec-
utive secretary of the Committee and a witness called by
the Respondent, negotiations for a new contract started on
or about May 22, 1975 From that time until June 30, 1975,
the parties had approximately 11 negotiating sessions last-
ing from 2 to 10 hours
He stated that by June 30, while there had been some
agreement on minor items, there were four principal areas
of disagreement which continued to be resolved They
were (1) the method of compensation for the employees,
(2) the flexible workweek, (3) the manner in which time on
a particular job is calculated, and (4) a proposed change in
compensation for employees in the body shops
Burns stated that after the June 29 meeting, the dealers
took the position that they would implement their last offer
on July 2 Then at the meeting the next day, the dealers
stated that an impasse existed and that they would imple-
ment their last proposal as of July 2, which they did The
Union then went on strike
The parties continued to meet however, having eight
sessions, including the one on August 7, 1975
224 NLRB No 154
BILL COOK BUICK 1095
Burns testified that at these meetings no real movement
was made, particularly on the four principal areas of dis-
pute although he did state that there had been some give
and take with regard to minor issues At the August 7 ses-
sion, a Committee spokesman announced that the Respon-
dent had withdrawn from the association
The Union did not, apparently, comment one way or
another on this matter
Thereafter, there were at least 12 more negotiation ses-
sions, and in October, according again to the testimony of
Burns, the Union relented on one of the four issues while
the employers gave on the other three and a contract was
agreed to
The uncontroverted testimony of Burns is that there
were about 20 or 30 minor items on which there was give
and take None, however, was a strike or impasse issue
The issues of significant importance which, when settled,
brought the parties together for a contract were the four
items indicated above, and on those, there was no move-
ment from the opening of negotiations in late May until
the last week of October
In essence, the General Counsel argues that during the
course of negotiations, the Respondent could not lawfully
withdraw from the multiemployer association By doing so
and then refusing to abide by the contract thereafter
reached, the Respondent has failed to bargain in good
faith
Conversely, the Respondent, agreeing that it was a mem
ber of the multiemployer association for many years and
during the early part of negotiations of 1975, nevertheless
argues after the impasse was reached on June 30 it was at
liberty to withdraw from the multiemployer association
Thus, when it did so on August 7, 1975, such was its right
and it was therefore not guilty of a refusal to bargain Fi
nally, having appropriately exercised its right to withdraw
from the multiemployer association, the Respondent was
not bound to accept any contract negotiated by the Com-
mittee and the Union
B The Issue
The principal issue in this matter is whether, under the
circumstances here, a member of a multiemployer bargain-
ing association can withdraw from that association
C Analysis
Multiemployer bargaining is common Although not a
statutorily recognized bargaining unit, early on the Board
concluded that all parties could consent to bargain on a
multiemployer basis Shipowners Association of the Pacific
Coast, et al, 7 NLRB 1002 (1938)
Thereafter, the Board set rules concerning whether and
to what extent an employer or union might withdraw from
an established multiemployer bargaining arrangement See
Retail Associates, Inc, 120 NLRB 388 (1958) In essence,
the Board held that prior to the beginning of negotiations
either a union or an employer-member might withdraw its
consent upon giving adequate unequivocal, written notice
of its intention to do so However, once negotiations begin,
then neither member nor the union could withdraw with-
out the consent of the other party, except in the event of
"unusual circumstances " There have followed a number
of cases dealing with the question of "unusual circum-
stances
The General Counsel argues that there were no unusual
circumstances here, while the Respondent contends that
there was a bargaining impasse, and such is a sufficient
condition to permit its unilateral withdrawal
In agreement with the Respondent, I am persuaded that
an impasse did exist before and at the time the Respondent
withdrew from the Committee
Impasse, at best, is a plastic concept, the existence of
which depends on analysis of the particular factual situa-
tion It might briefly be described as a set of conditions
which sometimes coalesce during the course of collective
bargaining whereby the parties are in substantial dis-
agreement upon one or more significant items to the point
movement by one or the other seems unlikely, absent addi-
tional factors When such a deadlock exists, then both sides
are free to exert economic pressure which might otherwise
be unlawful [e g, an employer for instance can unilaterally
implement changes in wages, hours and other conditions so
long as such is consistent with his negotiating proposals
Taft Broadcasting Co, WDAFAM FM TV, 163 NLRB 475
(1967)]
Impasse then is a word of art meant to describe a set of
circumstances in which it is unlikely that either party will
move sufficiently so as to effectuate a contract Finding
impasse is recognition that agreement to a contract is not
realistic, absent an additional factor such as economic
pressure
Thus, as the Board said in Taft Broadcasting Co, supra at
478, whether or not the set of conditions amounts to im-
passe is a matter of judgment "The bargaining history, the
good faith of the parties in negotiations, the length of the
negotiations, the importance of the issue or issues as to
which there is disagreement, the contemporaneous under-
standing of the parties as to the state of negotiations are all
relevant factors to be considered in deciding whether an
impasse in bargaining existed'
In this matter, there were numerous bargaining sessions
over a period of more than 5 months The uncontroverted
testimony is that there was some give and take on 20 or 30
minor items However, the principal areas of contention,
which involved the hours and the pay of employees, re-
mained in dispute throughout the whole period with nei
ther the Union nor the Committee giving at all There was
no movement by either party until the last week in negotia-
tions Then there was a breakthrough and a contract was
quickly settled
The four items in dispute all affected the very heart of
the employment relationship Given that there was no
movement by either party on any of them throughout early
bargaining, or even after the contract expired and econom
is pressure began, leads me to conclude that these items,
taken together, were the sine qua non to both parties' agree-
ment to a contract
Their respective positions remained unchanged from
May 22 through June 30 until late October Therefore, I
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conclude that by June 30, the parties had reached a point
in negotiations where agreement was unlikely, and which
would, and did, permit exertion of economic pressure by
the employers as well as the Union
However, the record is devoid of any evidence, other
than the strike, of any special circumstance threatening the
Respondent's existence
The only "unusual circumstance" here is the impasse,
and that was not enough In Hi Way Billboards, Inc, 206
NLRB 22 (1973), the Board held that impasse in negotia-
tions is not a sufficiently "unusual circumstance" so as to
warrant the unilateral withdrawal by an employer from a
multiemployer bargaining unit The Board stated that "un-
usual circumstance" contemplated a situation wherein the
employer's very existence was threatened But, "a genuine
impasse in such a situation does not call into question the
actual continued existence of any multiemployer bargain-
ing association member as a viable business entity " The
existence of an impasse in negotiations would not, of itself,
suffice to allow an employer to withdraw from a multiem-
ployer bargaining unit during negotiations Although re-
jected by four circuits,2 such is nevertheless the rule of de-
cision here
Upon the record before me, I find only that there did
exist a bargaining impasse prior to the time the Respon-
dent attempted to withdraw from the association There
are no other factors said to exist which would permit the
Respondent's unilateral withdrawal during negotiations,
and I find there were none
Finally, there is no evidence that the Union acquiesced
in the Respondent's withdrawal, nor could its actions be
construed as consent I conclude that the Respondent's at-
tempted withdrawal from the multiemployer association in
which it had been a member after negotiations began for a
new contract was untimely It follows that the Committee
continued to act as the designated collective-bargaining
agent for the Respondent, and the Respondent is therefore
bound by the contract its bargaining agent agreed to
THE REMEDY
A final issue here concerns whether the General
Counsel's requested remedy that the Respondent be or-
dered to adopt and implement the contract is appropriate
in light of the Supreme Court's decision in H K Porter
Company, Inc v NLRB , 397 U S 99 (1970) In that case
the Supreme Court said that the Board is without power to
enter an order requiring an employer to accept a particular
contract clause It therefore would seemingly follow, as ar-
gued by the Respondent, that the Board would be without
2 The Third Circuit in N L R B v Beck Engraving Co Inc 522 F 2d 475
(1975) the Ninth Circuit in N L R B v Associated Shower Door Co Inc et
al 512 F 2d 230 (1975) the Fifth Circuit in N L R B v Hi Way Billboards
Inc 500 F 2d 181 (1974) and the Eighth Circuit in Fairmont Foods Co v
NLRB 471 F 2d 1170 (1972) In brief the circuit courts reason that
absent allowing an employer to withdraw after impasse the union would
have two economic weapons (the selective strike and individual negotia
tions) whereas the employer would have but one (the lockout) And such a
situation is not equitable
power to force an employer to accept an entire contract
However, the traditional remedy in cases where the Board
has found that an employer unlawfully withdrew from a
multiemployer bargaining association has been to require
that employer to abide by and implement the negotiated
contract, botn before and after H K Porter
Rather than ordering an employer to agree to particular
terms of the contract, this remedy simply requires the em-
ployer to abide by the terms of the contract it negotiated
through its duly authorized agent, recognizing that the at-
tempted withdrawal of agency was ineffective
It has been found that the Respondent refused to bar-
gain with the Union by refusing to execute the 1975 agree
ment between the Union and the association Therefore, as
the Board ordered in Hi Way Billboards, Inc supra, it will
be recommended that the Respondent be ordered to sign
and honor said agreement and make whole its employees
for any loss of wages or other benefits they may have suf-
fered as a result of the Respondent's refusal to sign an
agreement on or about October 29, 1975 Backpay, if any,
shall be computed in accordance with the formula set forth
in F W Woolworth Company, 90 NLRB 289 (1950) and
Isis Plumbing & Heating Co, 138 NLRB 716 (1962)
CONCLUSIONS OF LAW
1 Respondent, Bill Cook Buick, Inc, is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act
2 Auto Mechanics, Local 701, International Associa-
tion of Machinists & Aerospace Workers, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act
3 All mechanics, bodymen, painters, apprentices and
semiskilled workers employed by the employers designat
ing the New Car Dealers Committee as their collective-
bargaining representative, including Bill Cook Buick, Inc,
but excluding salesmen, office clerical employees, guards
and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining with-
in the meaning of Section 9(b) of the Act
4 At all times material hereto, the Union has been the
exclusive bargaining representative of the employees in-
cluding those of the Respondent in the aforesaid appropri-
ate unit
5 At all times material, New Car Dealers Committee
has been the authorized negotiating agent of the Respon-
dent authorized to negotiate collective-bargaining agree-
ments on behalf of the Respondent within the meaning of
Section 2(13) of the Act
6 By refusing on and after October 29, 1975, to sign the
1975 agreement between the Union and the aforesaid
Committee, the Respondent has engaged in an unfair labor
practice within the meaning of Section 8(a)(5) and (1) of
the Act affecting commerce within the meaning of Section
2(6) and (7) of the Act
Upon the foregoing findings of fact and conclusions of
law, and the entire record of the case I hereby issue the
following recommended
BILL COOK BUICK 1097
ORDERS
Respondent, Bill Cook Buick, Inc, Arlington Heights,
Illinois, its officers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Failing and refusing to sign the contract dated Octo-
ber 29, 1975, negotiated by the New Car Dealers Commit-
tee on behalf of its members and Auto Mechanics, Local
701, International Association of Machinists & Aerospace
Workers, AFL-CIO
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
right to self-organization, to join or assist the said Union or
any other labor organization, to bargain collectively
through representatives of their own choosing, and to en-
gage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection
2 Take the following affirmative action which will ef-
fectuate the policies of the Act
(a) Forthwith sign and implement the agreement dated
October 29, 1975, between the Committee and the Union
insofar as it applies to employees of the Respondent in the
above-described unit
(b) Upon execution of the foregoing agreement, give ret-
roactive effect to October 20, 1975, including but not limit-
ed to the provisions relating to wages and other employ-
ment benefits and in the manner set forth in the section of
this decision entitled "The Remedy," and make whole its
employees for any losses that they may have been suffered
by reason of the Respondent's failure or refusal to sign the
said contract
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this recommended Order
(d) Post at its place of business in Chicago, Illinois, cop-
ies of the attached notice marked "Appendix " 4 Copies of
said notice, on forms provided by the Regional Director
for Region 13, after being duly signed by the Respondent's
representative, shall be posted by it immediately upon re-
ceipt thereof, and be maintained by it 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 Respondent to insure that
said notices are not altered, defaced, or covered by any
other material
(e) Notify the Regional Director for Region 13, in writ-
ing, within 20 days from the receipt of this Order, what
steps the Respondent has taken to comply herewith
s 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 the 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
4 In the event the Board s 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL forthwith sign the contract dated October
29, 1975, negotiated by Auto Mechanics Local 701,
International Association of Machinists & Aerospace
Workers, AFL-CIO, and the New Car Dealers Com-
mittee
WE WILL give retroactive effect to the terms and con-
ditions of said contract, including but not limited to
the provisions providing for wages and other employ-
ment benefits
WE WILL make our employees whole for any losses
they may have suffered by our refusal to sign said
agreement
WE WILL NOT in any like or related manner, interfere
with, restrain, or coerce our employees in the exercise
of rights guaranteed them by Section 7 of the Act
BILL COOK BUICK, INC