Capitol Chevrolet Co.

National Labor Relations Board - Board Decisions

Aug 6, 1979

243 N.L.R.B. 1086 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Teamsters Union Local No. 378, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (Capitol
Chevrolet Co.) and Olympia Automobile Dealers
Association. Case 19-C'B3002
August 6, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING ANI) MEMBERS JENKINS,
PENELI.O, AND TRUESDALE
On June 7, 1978, Administrative Law Judge Har-
old A. Kennedy issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief in support of the Administrative Law Judge's
Decision.
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 Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Teamsters Union Local
No. 378, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, its officers, agents, and representatives,
shall take the action set forth in the said recommend-
ed Order, except that the attached notice is substi-
tuted for that of the Administrative Law Judge.
I Because our decision herein recognizes the nght of the multiemployer
group to prevent the untimely withdrawal of any employer-member. it is
clear that, absent unusual circumstances, any untimely attempt by an em-
ployer-member to withdraw without the consent of both the Union and the
multiemployer group would constitute a violation of Sec. 8(aX5) of the Act
as of the time of the withdrawal. Accordingly, to the extent our decisions in
Ringside Liquors, Inc. db/a Dino's Lounge and Cassell & Friedman, Inc.
d/b/a King of Clubs, 237 NLRB 30. fn. 2 (1978); Independent Association of
Steel Fabricators, Inc., et al. 231 NLRB 264. fn. 2 (1977); and Preston H.
Haskell Company, 238 NLRB 943, fn. I (1978), are inconsistent herewith,
they are hereby overruled. Chairman Fanning would not overrule. He ad-
heres to the position expressed in the cited cases.
After multiemployer negotiations have begun, the execution of an interim
pact between an individual employer and the union without the consent of
the association does not, even in the absence of unusual circumstances. con-
stitute a violation of the Act. As set forth in Charles D. Bonanno Linen
Service, Inc.. 243 NLRB 1093 (1979). issued this date, an appropriate interim
agreement is not inconsistent with, or destructive of, group bargaining since
such an interim agreement contemplates adherence to a final unitwide con-
tract. This commitment to a final multiemployer contract precludes a finding
that a signatory of an interim agreement has withdrawn in an untimely
fashion from the multiemployer unit.
APPENDIX
Noii('n To MEMBI;RS
P()ositD 1BY ORI)IR 01 Ill
NAIIO()NAI. LABOR REI.AIIONS BARD
An Agency of the United States Government
WU, Will. Nor refuse to bargain with the Olym-
pia Automobile Dealers Association by negotiat-
ing, entering into, or giving effect to any separate
collective-bargaining agreement with any associ-
ation dealer-member at a time when we and the
Association are obligated by law to bargain in
multiemp!oyer bargaining: except that we shall
honor and give effect to the agreement we ex-
ecuted with Capitol Chevrolet Co. on August 25,
1977, until we reach agreement with the Associ-
ation.
WE Wll.l NOT in any like or related manner
refuse to bargain collectively in good faith with
the Olympia Automobile Dealers Association.
WE WILL. notify the Olympia Automobile
Dealers Association that we will, upon request,
as the representative of the employees in the ap-
propriate unit, bargain with the Association, as
the representative of its dealer-members, and WE
w.l. honor and give effect to the agreement we
executed with Capitol Chevrolet Co. on August
25, 1977, only until we reach agreement with the
Association. The appropriate unit is all persons
employed by the Association's dealer-members
in the following job classifications:
All motorcycle men, pickup and delivery men,
washers and cleaners, greasers, polishers, tire
repairmen, vulcanizers, re-treaders, mainte-
nance men, steam cleaners, battery and tire
servicemen, parts men, tool and stock room
employees, parking lot and garage men.
TEAMSTERS UNION LOCAL No. 378, AFFILI-
ATED WITH INTERNATIONAI. BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS, WAREHOUSE-
MEN AND HELPERS OF AMERICA
DECISION
STATEMENT OF THE CASE
HAROLD A. KENNEDY, Administrative Law Judge: This
case was heard before me in Olympia, Washington, on Feb-
ruary 2 and 3, 1978.' The complaint in this matter, which
issued on November 7, 1977, based on a charge filed by the
Olympia Automobile Dealers Association (Association), al-
leges that Respondent Teamsters Union Local No. 378, af-
filiated with the International Brotherhood of Teamsters.
All dates are for the year 1977 unless otherwise indicated.
243 NLRB No. 138
1086
TEAMSTERS UNION LOCAL NO. 378
Chauffeurs, Warehousemen and Helpers of America (re-
ferred to as the Teamsters or as the Union). violated Sec-
tion 8(b)(3)2 of the National Labor Relations Act, as
amended (29 U.S.C. §151, e seq.). by entering into a sepa-
rate collective-bargaining agreement with Capitol Chevro-
let Co.' (Capitol) on or about August 25. after Capitol an-
nounced its withdrawal from the Association and the
multiemployer bargaining without the Association's con-
sent.' The principal issue for determination is whether the
Respondent Union violated the Act by bargaining sepa-
rately with Capitol and concluding a bargaining agreement
with it.
A number of matters are not in dispute. including the
following:
I. Capitol is a Washington corporation with an office
and place of business located in Olympia, Washington. It
sells new and used automobiles at retail. During the 12
months preceding the issuance of the complaint, Capitol
grossed $500,000 or more and, at all times material herein,
it has been an employer engaged in commerce within the
meaning of Section 2(5) of the Act.
2. Respondent is now, and has been at all times material,
a labor organization within the meaning of Section 2(5) of
the Act.
3. Leo B. Sweeney is now, and has been at all times
material, the secretary-treasurer and an agent of the Union.
4. Ed McCarroll and Harlan Griffith are, respectively,
the owner and general manager of Capitol. They are now,
and have been at all times material, agents and supervisors
of Capitol.
5. The Association is an organization of Olympia, Wash-
ington, automobile dealers which has represented its mem-
bers, including Capitol, for a number of years in collective
bargaining
6. Capitol was a current and paid-up member of the As-
sociation until June 16, on which date Capitol submitted its
letter of resignation during a multiemployer bargaining ses-
sion with the Machinists Local 695, which represents the
mechanic employees of the dealer members of the Associ-
ation. On that date, Capitol furnished a copy of its resigna-
ISec. 8(bx3) of the Act makes it an unfair labor practice for a labor
organization "to refuse to bargain collectively with an employer, provided it
is the representative of his employees subject to the provisions of section
9(a)."
'Capitol Chevrolet Co. was named as a respondent in Case 19-CA-9924,
which was consolidated on November 7 1977, with this matter for hearing.
An informal settlement was reached in Case 19 CA 9924. and the cases
were severed on December 9, 1977.
' The complaint of November 7 is a consolidated complaint which names
the Union as well as Capitol as a Respondent. but, as noted in fn. 3. the
matter involving Capitol has been informally settled. The charge against the
Respondent Union was filed by the Association on September 13. and the
charge against Capitol was filed by the Association on October 31.
The Association has articles of incorporation and bylaws, but association
officials, in general. have not been familiar with or consulted them. One
former president of the Association, Lonny Heintz, said he performed his
duties in that position on the basis of "trade and custom." A bylaw provides
that a member will be expelled from membership if he is delinquent in
paying his dues or assessments for more than 10 days. This provision has
never been enforced. In any event, the legality of Capitol's withdrawal from
multiemployer bargaining and the subsequent negotiation o a contract be-
tween Respondent and Capitol does not turn on the provisions of the associ-
ation bylaws or articles of incorporation See The Humme C(onmpan. Inc.
206 NLRB 679 (1973).
tion letter to the Association. individual association mem-
bers and to Kenneth Richey. an official of the International
Association of Machinists and Aerospace Workers and the
chief negotiator for the mechanics employed by the associ-
ation members. The Respondent Union received a copy of
Capitol's letter of resignation a day or so later.2
7. The Respondent Union and the Association were par-
ties to a collective-bargaining agreement covering the pe-
riod June 1, 1974. to May 31, 1977. and including the fol-
lowing job classifications of persons employed by 10
association dealer-members:
All motorcycle men, pickup and delivery men, washers
and cleaners, greasers, polishers, tire repairmen. vul-
canizers, re-treaders, maintenance men, steam clean-
ers, battery and tire servicemen, partsmen, tool and
stockroom employees, parking lot and garage men.
8. The Respondent Union is now, and has been at all
times material, the collective-bargaining agent of the group
of employees referred to in paragraph 7 above, concededly
a unit appropriate for collective-bargaining purposes.
9. Respondent sent the Association a notice of its desire
to negotiate a new contract on March 9. The Association
and Respondent began negotiation of a new collective-bar-
gaining agreement on May 27. Thirteen additional sessions
were held-on June 9, 10. 20. and 24, August I and II,
September 12. 21, and 29, October 20, November 4. De-
cember 8. and January 11-without any agreement being
reached. The Association's bargaining committee consisted
of Martin Hoover of Hoover Pontiac-Cadillac. chairman;
Ed McCarroll. of Capitol Chevrolet Co., and Earl "Andy"
Anderson of Sinclair-Anderson Oldsmobile. Lonny Heintz
of Olympia Datsun-Dodge and Clyde Sinclair of Sinclair-
Anderson Oldsmobile were later designated as alternate
committee members. Leo Sweeney acted as the Respon-
dent's chief negotiator.
10. Capitol Chevrolet and Respondent entered into sepa-
rate negotiations after June 16. and a 3-year contract was
signed by Capitol's General Manager Griffith and Team-
sters' Leo Sweeney on August 25. There was an oral under-
standing reached between Sweeney and Griffith that if Re-
spondent and the Association should reach an agreement
more favorable to employers in terms of labor costs, the
Union would "roll our deal back."
I1. The Association had agreements with the Respon-
dent Teamsters and the Machinists which were due to ex-
pire at approximately the same time in the spring of 1977
with the result that the Association held a number of bar-
gaining sessions with both Unions in May and June. The
Association utilized the same negotiating committee in bar-
gaining with the Respondent and Machinists.
I The Association shortly thereafter voted to reject Capitol's resignltion.
The Association had voted 2 years earlier to accept the resignation ,I an-
other member. Rotter Automotive (the Olympia Toyota dealer). which had
been submitted well before the beginning of any negotiations in 1977.
'Chief assxociaion negotiator Hoover testified that the AssxKation did not
learn that Capitol and Respondent had signed a separate contract until Sep-
tember 21. when Respondent's chief negotiator. Sweeney. told him and an-
other association member representative of that fact Of cour,e. the A.socl-
ation had been aware since June 16 that Capitol was seeking to make
separate latxr contracts on its own behalf
1087
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
12. he Machinists went on strike on June 23. A settle-
ment was thereafter reached, with a collective-bargaining
agreement being executed by the Association and the Ma-
chinists on or about August 7. The members of Respondent
Teamsters Union honored the Machinists' picket line set up
on or about June 23 but began their own strike against the
Association, thereafter picketing certain dealers, about July
12. The strike has continued since. Capitol Chevrolet and
the Machinists also signed a collective-bargaining agree-
ment after Capitol withdrew from multiemployer bargain-
ing in mid-June.
Much of the testimony relates to events that occurred on
June 16- referred to as "the day the roof fell in." during
an association dealers' meeting and a later bargaining ses-
sion with the Machinists. Harlan Griffith testified in consid-
erable detail about those events.
Seven representatives of eight dealerships met in the
morning at the Golden Carriage Restaurant and discussed
the possibility of presenting a cost-of-living proposal during
the afternoon's bargaining session with the Machinists. At
the previous bargaining session with the Machinists, held
on June 9, the association negotiators had indicated that a
cost-of-living proposal would be presented at the next bar-
gaining meeting. The chief association negotiator, Hoover,
favored a straight "hard money" contract without any cost-
of-living proviso but indicated his concern that the mechan-
ics might strike in the event the Association did not have a
cost-of-living proposal to present that afternoon." Hoover
expressed the view that he could obtain a week's delay from
the Machinists on the basis that two other members of the
Association's bargaining committee. McCarroll and Ander-
son, were out of town. Griffith expressed a contrary opinion
and put forth two different motions that would empower
the Association's negotiators to present cost-of-living pro-
posals. Both of Griffith's proposals were rejected by tie
votes. Another dealer representative, Ray Damatio, also
moved that the negotiators have a "hip pocket" cost-of-
living proposal for use in the event it appeared that strike
was imminent. Damatio's motion was ultimately with-
drawn after some discussion. Griffith testified that during
the dealer meeting he indicated that he reserved his right to
withdraw from the Association. He had, in fact. previously
prepared a letter of resignation, dated June 16, for possible
use on that day. Griffith testified that Hoover asked Griffith
if he would like to attend the bargaining session with the
Machinists that afternoon and speak separately for Capitol,
but Hoover and other dealers denied that Hoover made
I State Motors was not represented at the June 16 dealers' meeting. Lonny
Heintz was there as a representative of the Dodge and Datsun dealerships in
Olympia.
9 Also on June 9, certain dealers had met at the Jacaranda Restaurant.
Negotiations were discussed to some extent. but I am persuaded that it was
not a secret negotiating meeting as Capitol officials thought. Association
President Meixner explained that the meeting involved only "a group of
dealers interested in putting together an auto mall." Lonny Heintz, who was
likewise offended at first when he learned of the meeting to which he also
had not been invited, accepted Meixner's explanation.
10Griffith testified that Hoover had asked him a few days earlier to pre-
pare a "fake" cost-of-living proposal, Hoover's strategy. according to Grilf
fith. was that such a proposal would keep the bargaining open and delay the
possibility of a strike. Gnffith said he offered to help prepare a cost-of-living
proposal. not an "artificial or obviously unacceptable" one.
such an offer. Griffith testified that during a recess of the
dealers' meeting that morning, Lonny Heintz told him, "I
feel the same way," but expressed a desire to "keep this
thing together."" Griffith said he then told Heintz that he
would stay with the Association if he could go to the bar-
gaining session with the Machinists as an observer and with
the understanding that a cost-of-living proposal would be
presented if necessary to obtain the week's extension and
delay a work stoppage. Griffith said Heintz restated his pro-
posal to the dealers present, and they agreed to it.
The bargaining session with the Machinists convened at
Hoover's place of business in the afternoon with Hoover.
Heintz. Sinclair, and Griffith in attendance, along with Ken
Richey and other members of the Machinists' negotiating
committee. Hoover asked for the extension of time to nego-
tiate, but Ken Richey and his committee were reluctant to
give it. According to Griffith. two caucuses were held that
afternoon. and Hoover rejected during both appeals by
Griffith that the Association put forth a cost-of-living pro-
posal. Griffith also testified that during each caucus Hoover
indicated that Griffith could, if he wished. make a separate
deal for Capitol during the bargaining session. Griffith said
he thought the matter over and decided to withdraw from
the multiemployer bargaining. Shortly after the bargaining
session resumed, Griffith announced Capitol's withdrawal
and distributed copies of his letter of resignation. He indi-
cated to Richey, the Machinists chief negotiator, that he
hoped that the Machinists would not strike against Capitol
and that he was available to negotiate a separate agreement
on behalf of Capitol's employees, Griffith then left the bar-
gaining meeting."
The Board stated recently in The Carvel ('ona, et ol.,
226 NLRB I I 1 (1976). enfd. 560 F.2d 1030 (Ist Cir. 1977),
that:
In Retail Associates. 1120 NLRB 388 (1958)]. the
Board set forth the rules governing the withdrawal of
an employer or a union from multiemployer bargain-
ing. An employer may withdraw without the union's
consent prior to the start of bargaining by giving un-
equivocal notice of the intent to abandon the multiem-
ployer unit and to pursue negotiations on an individual
employer basis. However, once negotiations have actu-
n Heintz also prepared a letter of resignation. but he never submitted it.
1The Machinists granted the Association a week's delay after Griffith
left. And the Machinists ultimately agreed to a contract without a cost-of-
living proviso.
Hoover said he had told Griffith during a caucus on the afternoon of June
16 that Griffith could go in and "blow his top" but at no time indicated that
day that Griffith could represent Capitol separately. Hoover testified he had
no authority to allow Griffith to negotiate separately for Capitol. Other deal-
ers also testified that Griffith was never authorized to bargain separately for
Capitol I credit Hoover and the corroborating dealers' testimony on this
point over Griffith's. Dealers testified that Griffith acted in an excited man-
ner on June 16. Sinclair, who recalled only one caucus that afternoon, said
Griffith was authorizd to attend the bargaining session onlk as a silent obh-
server but tried to take over, acting as if he "couldn't contain himself."
Meixner testified that Griffith was "very excited" in the morning He too
understood Griffith would attend the bargaining session onl) as an observer
and without any power to bargain independently for (aptol. While Heintz
had expressed the view anyone should be able to withdraw rom the Associ-
ation. he denied Hoover ever invited Gniffith to make a contract on his own
lie stated that Griffith was "highly excited" in the morning and acted in the
afternoon as a "man possessed."
1088
TEAMSTERS UNION LOCAL NO. 378
ally begun, withdrawal can only be effectuated on the
basis of "mutual consent" or "unusual circum-
stances.")
Multiemployer bargaining had unquestionably begun be-
fore Capitol had attempted to withdraw: the only question
is whether there was "mutual consent" of the necessary par-
ties to the separate bargaining between Respondent and
Capitol or "unusual circumstances" which justified such
separate negotiations.
The General Counsel's theory is simple enough: "... an
individual employer violates Section 8(aH5) of the Act
when it withdraws from multiemployer bargaining after ne-
gotiations begin without the consent of the Association and
executes a separate contract with the Union," and "the
Union correspondingly violates Section 8(bX3) of the Act
by negotiating separately with the individual employer
member." Respondent contends, on the other hand, that an
individual employer and a union may negotiate at any time
as long as they consent to the bargaining.
While the cases do not indicate the issue is free of
doubt.' I am persuaded that the General Counsel's view of
the applicable law is correct. In Retail Associates, Inc., 120
NLRB 388 (1958), the Board stated:
tThe Supreme Court approved multiemployer bargaining n .N . R B s.
Truck Drivers Local Union No. 449. Teamsters Buffalo Linen Supph Co( ]/.
335 U.S. 87 (1957). Following Retail Associates, it was held that. once mul-
tiemployer bargaining had begun, the union is presumed to retain majorii
support of employees. N.L. R. B v. Sheridan Creations, Inc. 357 F.2d 245 (2d
Cir. 1966). Unions have the right of withdrawal from multiemploser bar-
gaining on the same basis as employers. See The Evening Neus Association.
154 NLRB 1494 (1965); and Pacific Coast Association of Pulp and Paper
Manufacturers, 163 NLRB 892 (1967). The court's recent decision In
N.L. RB. v. Beck Engraving Co., Inc, 522 F.2d 475 (3d Cir. 1975), discusses
these and other important multiemployer bargaining cases. The court held in
Beck that an impasse had occurred and that withdrawal by one employer
from the multiemployer unit was justified.
' It will be noted that the Board has allowed a union and individual
employer to negotiate a separate interim agreement while multiemployer
bargaining continued, Sangamo Construction Compan, 188 NLRB 159
(1971). See also Plumbers and Steamfitters Union No .123 (P.H C Mechanical
Contractors), 191 NLRB 592 (19711. But the agreement which Capitol and
Respondent negotiated is not an interim one but, by its terms, a full 3-year
contract.
Respondent cites a number of cases in its brief, contending that the deci-
sions indicate that the issue of mutual consent concerns only the individual
employer and the union. But I do not so construe their holdings. None holds
that a union and an individual employer can break away from multiem-
ployer bargaining and make a separate agreement, absent an impasse or
other unusual circumstances, in the face of opposition from the other em-
ployers. Ice Cream, Frozen Custard Industry Employees, Drivers. Vendors and
Allied Workers Union Local 717, Teamsters tice Cream Council, Inc .), 145
NLRB 865 (1964). involved an impasse and separate contracts agreed to by
the Union and the employers. The Kroger Co., 148 NLRB 569 (1964), is of
no help to Respondent as it held that the employer could not withdraw from
the multiemployer bargaining arrangement. In Sheridan Creations, Inc., 148
NLRB 1503 (1964), the employer did not have the union's consent to with-
draw and could not question the union's majority.
An employer was allowed to withdraw from multiemployer bargaining in
Atlas Sheet Metal Works. Inc., 148 NLRB 27 (1964), but there was an im-
passe, and the union had acquiesced in the withdrawal. An employer's with-
drawal from multiemployer bargaining in U.S Lingerie Corporation, 170
NLRB 750 (1968), was held lawful, although untimely, as it had become
bankrupt, and the Union had waived further bargaining as to it. Finally,
I. C. Refrigeration Service, Inc., 200 NLRB 687 (1972), involved the question
of whether the union had consented to the employers' withdrawal from mul-
tiemployer bargaining. and the Board said it had. In other words, the union
and the employers agreed to the withdrawal.
We would accordingly refuse to permit the withdrawal
of an employer or a union from a duly established mul-
tiemployer bargaining unit, except upon adequate
written notice given prior to the date set by the con-
tract for modification, or to the agreed-upon date to
begin the multiempoyer negotiations. W here actual
bargaining negotiations based on the existing multiem-
ployer unit have begun. we would not permit. except
on mutual consent, an abandonment of the unit upon
which each side has committed itself to the other, ab-
sent unusual circumstances.
The rule against permitting withdrawal from multiem-
ployer bargaining has been enforced invariably to protect
unions except in cases where the) engage in whipsawing. as
in Retail Associates, or other obviously unfhair conduct. See
Local Union No. 10.3, Iron Workers /.4ssociated General
Contractors of America, Evanssville Chapter, Inc.]. 195
NLRB 980 (1972), enfd. 465 F,2d 327 (71h Cir. 1972). And.
unlike the union involved in Retail Associates, Respondent
has not engaged in whipsaw tactics, or other conduct. to
force Capitol or any other individual employer to withdraw
from multiemployer bargaining.' Respondent points out.
persuasively and accurately, in its brief that:
Htere, Local 378 in the representation of certain em-
loyees was faced with the unsolicited and unilateral
action of Capitol in stating that it. Capitol. was going
to negotiate on its own. This action was taken on June
16, 1977. Local 378 was in a position of consenting to
this action or refusing to accept Capitol's unilateral
action ....
But Retail Ass.ciates does not simply outlaw whipsawing or
other unfair conduct b a union where established multiem-
ploer bargaining has begun. It is a broad proscription
against bargaining between a union and an individual em-
ployer once multiemployer bargaining has begun absent
unusual circumstances or mutual consent on the part of the
union and the multiemployer group. Cf. N.L.R.B. . Hi-
Way Billboards. /tInc., 5(X F2d 181 (5th Cir. 1974).
The First Circuit's recent opinion in Carvel, supra, also
indicates that, in multiemployer bargaining situations, mu-
tual consent means that the union as well as the employers
involved must agree to any withdrawal and separate nego-
tiations between a union and an individual employer. Said
the court 1560 F.2d at 1034-35]:
The application of the Retail Associates rule over the
last two decades has given it sufficient precision of for-
mulation to leave action under it unembarrassed by
uncertainty and misgivings about possibly vagarious
administrative applications. No more is necessary to
operate safely in its domain of operation than adver-
tence to the notice dates in the current bargaining
agreement. Freedom of action is uncontrolled so long
as it is unequivocal and timely. The Retail Associates
rule is. none the less. an administrative construct in-
tended to serve policy aims, stability in industrial rela-
tions and fairness in negotiation. As the cases insist.
'5 Griffith testified that the conduct of Respondent was not involved in his
decision to withdraw Capitol from the Asociation and multiemployer bar-
gaining
1089
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
multiemployer bargaining rests on the reality of the
consent of the union and of each employer, but the
Retail Associates rule as formulated and applied makes
clear that it is the real consent given at the outset that
is meant. and once given at the outset of the negotia-
tions, it cannot be withdrawn except in unusual cir-
cumstances. That is not familiar contract law but is a
legitimate administrative rule in implementation of
Section 8(a)(1), (5) and (b)(3) in the context of mul-
tiemployer bargaining.
There were no unusual circumstances justifying Capitol's
withdrawal from multiemployer bargaining or the separate
negotiations between Capitol and Respondent. Respondent
has not claimed that extreme financial hardship had threat-
ened the existence of Capitol as a viable employer as was
the case of the employer in N.L.R.B. v. Spunn-Jee Corpora-
lion and the James Textile Corporation, 385 F.2d 379 (2d
Cir. 1967), a case cited by Respondent. Also., there had
been no fragmentation of the multiemployer bargaining
unit here as in N.L.R.B. v. Southwestern Colorado Contrac-
tors Association, 447 F.2d 968 (10th Cir. 1971), another of
Respondent's authoritiesi6 And, although Respondent has
asserted otherwise, there was no impasse, for the Associ-
ation and the Union were still bargaining on June 16 when
Capitol made its withdrawal from the multiemployer bar-
gaining. Respondent also suggests that the complaint was
defective for failing to name the Association as an em-
ployer, but I am unable to detect any fatal defect in the
pleadings. Finally, I am unable to agree that by filing the
charge herein against the Union, the General Counsel has
indicated that the Association may dictate decisions which
belong to the Union. As Carvel supra, points out, multiem-
ployer bargaining is predicated on consent of the union and
each employer "given at the outset" of the bargaining.
I am thus constrained to hold that Respondent violated
Section 8(b)(3) of the Act, albeit in a technical manner. by
negotiating a separate collective-bargaining with Capitol
without the consent of the Association.
Based on the foregoing, and the entire record, I enter the
following:
CONI.USIONS OF LAW
I. Capitol is an employer engaged in commerce within
the meaning of the Act.
2. Respondent is a labor organization within the mean-
ing of the Act.
3. The Olympia Automobile Dealers Association is an
organization which exists, among other things, for purposes
of representing Capitol and other employer dealer members
in collective bargaining.
4. Respondent is the exclusive collective-bargaining rep-
resentative for employees of the Association's employer
members working in the following job classifications:
All motorcycle men, pickup and delivery men, washers
and cleaners, greasers, polishers, tire repairmen, vul-
*The Board in Local Union, No. 103, Iron Workers, supra, held that a
union violated Sec. 8(bX3) by making separate agreements with individual
employers, without the consent of the multiemployer association, "thereby
fracturlingl the existing multiemployer bargaining unit."
canizers, re-treaders, maintenance men, steam clean-
ers, battery and tire servicemen, partsmen. tool and
stockroom employees, parking lot and garage men.
5. By bargaining and executing a collective-bargaining
agreement with Capitol on August 25, 1977, without the
consent of the Association, the Respondent engaged in an
unfair labor practice within the meaning of Section 8(b)(3).
RtMIEI)Y
Having found that Respondent has engaged in unfair la-
bor practices within the meaning of Section 8(b)(3). I shall
recommend that it cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the policies of
the Act.'7
Upon the foregoing findings. conclusions of law, and the
entire record, and pursuant to Section 10(c) of the Act, I
hereby issue the following recommended:
ORDER'"
The Respondent. Teamsters Union Local No. 378, affili-
ated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, its of-
ficers, agents, and representatives, shalL:
I. Cease and desist from:
(a) Refusing to bargain with the Olympia Automobile
Dealers Association by negotiating, entering into, or giving
effect to, any separate collective-bargaining agreement with
any association dealer-member at a time when the Respon-
dent and the Association are obligated by law to bargain in
multiemployer bargaining; except that Respondent shall
honor and give effect to the agreement which it and Capitol
Chevrolet Co. executed on August 25, 1977. until agree-
ment is reached between Respondent and the Association.
(b) In any like or related manner refusing to bargain
with the Association.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Notify the Olympia Automobile Dealers Association
that it will, upon request, as the representative of the em-
ployees in the appropriate unit, bargain with the Associ-
ation, with the Association being the representative of its
dealer-members, and that it will honor and give effect to the
agreement executed by Respondent and Capitol Chevrolet
on August 25, 1977, only until agreement is reached be-
tween Respondent and the Association. The appropriate
unit is defined to include all persons employed by associ-
ation dealer-members in the following job classifications:
1 I am in agreement with the General Counsel that the agreement reached
between Respondent and Capitol should be given effect on an interim ba-
sis-that is. until an agreement is reached between Respondent and the As-
sociation.
The Charging Party seeks "monetary damages the remaining employers
may have experienced." but Respondent's conduct, involving no more than a
technical violation of the Act, hardly warrants such extraordinary relief.
la 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.
1090
IEAMSTERS UNION I.('AI. NO 378
All motorcycle men, pickup and delivery men, washers
and cleaners, greasers, polishers. tire repairmen. vul-
canizers. re-treaders, maintenance men. steam clean-
ers. battery and tire servicemen. partsmen. tool and
stockroom employees. parking lot and garage men.
(b) Post at its business offices and meeting halls copies of
the attached notice marked "Appendix."' Copies of said
notice, on forms provided by the Regional Director for Re-
gion 19. after being duly signed by Respondent's represent-
' In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
ative, shall be posted by Respondent immediately upon re-
ceipt thereof, and be maintained hb it for (1) consecutive
days thereafter, in conspicuous places. including all places
where notices to members are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered b an) other
material.
(c) Deliver to the Regional Director for Region 19 signed
copies of said notice in sufficient numbers to be posted by
association members, if willing, at their Ol mpia. Washing-
ton, facilities where notices to employees are customarily
posted.
(d) NotifN the Regional Director for Region 19. in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
11)91