Commercial Automotive Corp.

National Labor Relations Board - Board Decisions

Jan 29, 1968

169 N.L.R.B. 394 (N.L.R.B. 1968)

394 DECISIONS OF NATIONAL
Commercial Automotive Corporation and
Chauffeurs , Teamsters and Helpers Local Union
No. 391 , affiliated with International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and
Helpers of America. Case 11-CA-3351
January 29, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On October 18, 1967, Trial Examiner Marion C.
Ladwig issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions and the
General Counsel filed cross-exceptions to the Trial
Examiner's Decision.
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
powers in connection with this case to a three-
member panel.
The Board 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
Trial Examiner's Decision and the entire record in
this case, including the exceptions, and hereby
adopts the findings,' conclusions,2 and recommen-
dations of the Trial Examiner, as modified below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that the Respondent,
Commercial Automotive Corporation, Durham,
North Carolina, its officers, agents , successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as herein
modified:
1. Substitute the following for paragraph 2(b) of
the Trial Examiner's Recommended Order:
"(b) Upon execution of the foregoing contract,
give retroactive effect to the terms and conditions
thereof, including but not limited to the provisions
relating to wages and other employment benefits,
and make whole its employees for any losses they
may have suffered by reason of Respondent's
failure or refusal to sign the said contract, with in-
terest thereon at 6 percent per annum."
LABOR RELATIONS BOARD
2. Substitute the following for the second in-
dented paragraph of the Notice to All Employees:
WE WILL give retroactive effect to the terms
and conditions of said contract, including but
not limited to the provisions relating to wages
and other employment benefits, and make
whole our employees for any losses they may
have suffered by reason of our refusal to sign
the said contract.
I Assuming, arguendo, that Respondent's letter of January 9, 1967,
constituted a timely, effective withdrawal from the multiemployer com-
mittee, its subsequent participation in the bargaining sessions commenc-
ing in May 1967, indicated a clear intent to continue in group, rather than
individual collective bargaining. As multiemployer bargaining was occur-
ring during those sessions with Respondent's participation , we find no
merit in Respondent 's claim that it was no longer a member of the mul-
tiemployer unit.
2 As affirmative action to remedy Respondent 's unfair labor practices
and effectuate the Act's policies, we shall order Respondent forthwith to
sign the agreement dated June 1, 1967, to give retroactive effect to the
terms and conditions of that agreement , and to make whole its employees
for any loss of wages or other employment benefits they may have suf-
fered as a result of Respondent's failure or refusal to sign that agreement.
See John J. Corbett Press, Inc., 163 NLRB 154. Backpay, if any, shall be
computed, and shall bear interest, in accordance with the formulae set
forth, respectively, in F. W. Woolworth Company, 90 NLRB 289, and
Isis Plumbing & Heating Co., 138 NLRB 716.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Trial Examiner: This case was
tried at Raleigh, North Carolina, on September 7, 1967,1
pursuant to a charge filed on June 26 by Chauffeurs,
Teamsters and Helpers Local Union No. 391, herein
called the Union, and pursuant to a complaint issued Au-
gust 11. The case involves the refusal of the Respondent,
Commercial Automotive Corporation, herein called the
Company, to include its Durham garage employees under
the newly negotiated Carolina Automotive Maintenance
Agreement, although the employees at the Durham and
two other company garages were a part of the multiem-
ployer bargaining unit. The primary issue concerns the
Company's contention (in support of which it promised,
but failed, to cite some authority in its brief) that in-
asmuch as the Company received notice of a purported
defection of union support at Durham before the ratifica-
tion of the new two-State agreement, the Company's
refusal to include the Durham employees did not violate
Section 8(a)(5) and (1) of the National Labor Relations
Act, as amended.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due considera-
tion of the brief filed by the Company, I make the follow-
ing:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE LABOR
ORGANIZATION INVOLVED
The Company is a North Carolina corporation which
is engaged in the sale, maintenance, and repair of over-
I All dates, unless otherwise indicated, refer to the year 1967.
169 NLRB No. 76
COMMERCIAL AUTOMOTIVE CORPORATION 395
the-road tractors at garages in Durham and other cities in
North Carolina, where it annually_ receives goods and
materials valued in excess of $50,000 directly from out-
side the State . The Company admits, and I find, that it is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act. The Union is a labor organization
within the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Multiemployer Unit
For years, employers performing truck maintenance in
North and South Carolina have engaged in group bargain-
ing with the Union and three other Teamster locals. In
1964, the employers bargained as the Carolina Main-
tenance Labor Negotiating Committee. This committee
and the union negotiating committee negotiated and
signed a 3-year agreement (expiring May 31, 1967),
called the Carolina Automotive Maintenance Agreement,
which when printed provided space for the individual em-
ployer and local union to sign. While reciting that each
employer "recognizes the [local union] as the sole and
exclusive bargaining agent for all mechanics , mechanics'
helpers, garagemen , parts and stock room employees" at
the particular garage , the agreement also provided that
there would be joint negotiations and a multiemployer
unit of employees at all the garages:
Article 36 - Multi-Employer Unit
The undersigned Employer agrees to be bound by
all of the terms and provisions of this Agreement,
and also agrees to bound by the interpretations and
enforcement of the Agreement.
The Employer further agrees to participate in joint
negotiations of any modification or renewal of the
contract and to become a part of the multi-employer
unit set forth in the contract.
This agreement also provided , under the grievance
machinery (article 7): "The Employers and the Unions,
parties to this Agreement, shall together create a Bi-State
Committee to cover the States of North Carolina and
South Carolina."
Ignoring the facts (1) that the employers in 1964 or-
ganized a committee to negotiate the agreement and that
the committee chairman signed the agreement "For the
Employers," (2) that the agreement specifically provided
for a multiemployer unit and for multiemployer enforce-
ment and bargaining , and (3) that Company Counsel John
Grigsby conceded at the trial that the Durham employees
had been put "under the Carolina Maintenance contract,"
the company brief states: "The Respondent takes the
position that it is not and has not ever been a member of
a multi-employer bargaining unit ." This contention ap-
pears to be frivolous.
B. Multiemployer Bargaining in 1967
Pursuant to the contractual provision (article 36) that
the employers were to "participate in joint negotiations of
any ... renewal of the contract ," employer and union
representatives met on May 29-31 and June 2, and
negotiated a renewal of the Carolina Automotive Main-
tenance Agreement, for the term June 1 , 1967 , through
March 31, 1970 . Counsel Grigsby in the first meeting
identified himself as "spokesman " for the employer
group , and in the third meeting , furnished the union com-
mittee with a tabulation of the "Company Maintenance
Employees involved in Negotiations ," listing the number
of employees at each of the 13 named employers in the
multiemployer unit , totaling 1,019 employees . This tabu-
lation indicated that the Company had 118 employees in-
volved in the negotiations , including employees in the
Company's Durham garage . The evidence is undisputed
that there was no mention of excluding the Durham em-
ployees at any time during negotiations.
The new 3-year agreement , which was ratified by the
local unions on June 2 and 3 , was formally signed on July
11 by one of the employer negotiators who signed as
chairman "For the Employers," and by a union negotia-
tor who signed as chairman "For the Union" (referring to
the four local unions). It contains the same provisions for
a multiemployer unit , and for joint enforcement and
negotiations . Although printed copies of the agreement
had not by the time of trial been received and executed by
the individual employers and local unions , the employers
had already placed the contractual benefits into effect.
The evidence is clear that the employers , as well as the
local unions, considered themselves bound by the terms
of the new agreement when duly notified of its ratifica-
tion.
Nevertheless, the Company refused to include the em-
ployees at one of its three garages under the new agree-
ment . On June 2 (4 days after the multiemployer bargain-
ing began), the Company had received a letter from an at-
torney, claiming that the Union no longer represented a
majority of the employees at the Durham garage. On June
8 (5 days after the new agreement had been ratified), the
Company wrote the Union, enclosing a copy of the June
2 claim and advising that the Company was refusing to in-
clude the Durham employees in any contract until the
purported representation issue was resolved. Thereafter,
on June 30, an "RD" petition was filed for an election in
a proposed unit limited to the employees at the one
garage. The Regional Director dismissed the petition,
finding that there was "no question concerning represen-
tation." No appeal was taken from this dismissal , yet the
Company continued its refusal to include the Durham
employees under the new agreement jointly negotiated to
cover all the employees in the multiemployer unit.
C. _ The Company's Defenses
In addition to the seemingly frivolous contention that
the Company "is not and has not ever been a member of
a multi-employer bargaining unit" (discussed above), the
Company also contends that it effected a "timely
withdrawal from the alleged multi-employer bargaining
unit." The Company relies on the notice each of the em-
ployers sent to the respective local unions in January that
it "has not given authorization to any organization or as-
sociation to represent it in the negotiations of the
mechanics labor agreement ." The effect of this -notice
was to inform the local unions that the employers would
not be bargaining through the Carolina Maintenance
Labor Negotiating Committee (which was dissolved after
the 1964 negotiations). However, neither the Company
or any of the other employers withdrew , nor attempted to
withdraw from the multiemployer unit before the joint
negotiations began on May 29. In fact, the Company did
not have a separate representative at the joint negotia-
tions (as did most of the other employers), but was
represented solely by Counsel Grigsby, who acted as
"spokesman" for all the employers. Inasmuch as the em-
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployers had "indicated from the outset an intention to be
bound in collective bargaining by group rather than by in-
dividual action," there clearly was multiemployer bar-
gaining even if the employers had not specifically
delegated authority to an association to represent them in
collective bargaining . The Kroger Co., 148 NLRB 569,
573.
The Company further contends that it was shown at the
trial that "there had been no monolithic adherence by the
employers of the Carolina Automotive Association to the
objective of uniformity in their past contract as a whole."
In thus referring to the evidence that some of the em-
ployers have negotiated supplements , or riders, to the
Carolina Automotive Maintenance Agreement , the Com-
pany ignores the Board 's applicable ruling in the above-
mentioned Kroger case (cited by the Union at the trial)
that individual bargaining on limited matters is not incon-
sistent with group bargaining in a multiemployer uit.
The Company does not mention in its brief its conten-
tion at the trial that if an employer "receives notice, as we
did, after the expiration date of the contract and before a
new one has been agreed upon and executed , even though
it is multi-employer negotiations , the employer under the
Act commits an unfair labor practice then to go ahead and
sign a contract over the objections of the members," and
that "All we have done is to advise the union that we have
been put on notice , and in my opinion we are committing
an unfair labor practice if we sign the contract down here
for Durham ." To the contrary , of course , the Company
would not be permitted to withdraw from the multiem-
ployer unit after negotiations began , except with union
consent (not obtained here ), Sheridan Creations, Inc.,
148 NLRB 1503, 1505 , enfd . 357 F.2d 245 (C.A. 2), cert.
denied 385 U.S. 1005 , and certainly would not be per-
mitted to withdraw only one of its three garages from the
multiemployer unit while leaving the other two garages in
the unit , Pacific Coast Association of Pulp and Paper
Manufacturers , 163 NLRB 892, 898.
The Company contentions are clearly unfounded.
RECOMMENDED ORDER
Respondent, Commercial Automotive Corporation, its
officers, agents, successors, and assigns, shall:
1 . Cease and desist from:
(a) Refusing to sign the Carolina Automotive Main-
tenance Agreement, dated June 1, 1967, covering all
mechanics, mechanics' helpers, garagemen, parts and
stockroom employees at the Company's Durham, North
Carolina, garage.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Forthwith sign the Carolina Automotive Main-
tenance Agreement covering employees described in
paragraph 1(a) of this Recommended Order.
(b) Make whole its employees for any losses they may
have suffered by reason of the Respondent's refusal to
sign the agreement covering such employees.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(d) Post at its garage in Durham, North Carolina, co-
pies of the attached notice marked "Appendix."2 Copies
of said notice, on forms provided by the Regional
Director for Region 11, after being duly signed by
Respondent's authorized representative, shall be posted
by Respondent immediately upon receipt thereof, and be
maintained by Respondent for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable 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 11, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.3
CONCLUSIONS OF LAW
By refusing on June 8, 1967, and thereafter to include
all mechanics, mechanics' helpers, garagemen, parts and
stockroom employees at the Company's Durham garage
under the 1967-1970 Carolina Automotive Maintenance
Agreement, the Company has engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tions 8(a)(5) and (1) and 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has committed cer-
tain unfair labor practices, I shall recommend that it be
ordered to cease and desist from such conduct and from
any like or related invasion of its employees' Section 7
rights, and to take affirmative action, which I find neces-
sary to remedy and to remove the effect of the unfair
labor practices and to effectuate the policies of the Act.
Accordingly, on the basis of the foregoing findings and
conclusions, and the entire record, I recommend pursuant
to Section 10(c) of the Act, issuance of the following:
2 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
3 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify said Regional Director,
in writing , within '10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL sign the 1967 Carolina Automotive
Maintenance Agreement covering employees at our
Durham garage.
WE WILL make our Durham employees whole for
COMMERCIAL AUTOMOTIVE CORPORATION 397
any loss of benefits caused by our refusal to sign the This notice must remain posted for 60 consecutive
agreement. days from the date of posting and must not be altered,
COMMERCIAL AUTOMOTIVE defaced, or covered by any other material.
CORPORATION If employees have any question concerning this notice
(Employer) or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 1624
Dated By Wachovia Building, 301 North Main Street, Winston-
(Representative) (Title) Salem, North Carolina 27101, Telephone 723-2392.