Route 22 Toyota

National Labor Relations Board - Board Decisions

Dec 20, 2001

337 N.L.R.B. 84 (N.L.R.B. 2001)

84 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Route 22 Auto Sales d/b/a Route 22 Toyota and Route
22 Automobiles d/b/a Route 22 Honda and
Amalgamated Local 747. Case 22–CA–23835
December 20, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND WALSH
On November 24, 2000, Administrative Law Judge
Raymond P. Green issued the attached decision. The
General Counsel filed exceptions and a supporting brief.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order.
We find, contrary to the judge, that the Respondent
violated Section 8(a)(5) and (1) of the Act by withdraw­
ing recognition from Amalgamated Local 747 (Local
747).
The Respondent withdrew recognition from Local 747
in late August 1999, following an affiliation, merger, and
disaffiliation involving the collective-bargaining repre­
sentative of its unit employees. We begin by reviewing
the relevant facts.
Starting in 1992, the Respondent recognized Local 747
as the exclusive representative of a unit of its employees
at its facility in Hillside, New Jersey. Local 747 also
represented bargaining units at other employers. Ed
Bigham was the president of Local 747. In March of
1995, all but one unit of employees represented by Local
747, including the unit of the Respondent’s employees,
affiliated with the International Union of Allied, Novelty
and Production Workers, AFL–CIO (Novelty Workers)
and became chartered as the United Service Workers
Union, Local 911. The Unions understood that either the
Novelty Workers or Local 747 could terminate the af­
filiation in the first 5 years. Bigham became the presi­
dent of Local 911. In 1997, Local 911 merged with the
Production Workers Union, Local 148 (Local 148), an-
other local affiliated with the Novelty Workers. Bigham
became the secretary-treasurer of Local 148. Following
the merger, the Respondent recognized Local 148 as the
employees’ exclusive representative.
In the summer of 1998, Local 148 entered into contract
negotiations with the Respondent. The parties did not
reach a written agreement, though the Respondent agreed
to implement a pay raise in September 1998 that had
been agreed to despite the absence of a complete agree-
ment.1
1 Contrary to what the judge found, the record does not establish that
the parties reached a complete agreement or implemented all of the
On or about April 19, 1999,2 Bigham sent letters to
employees of the shops which had been covered by con-
tracts with Locals 911 and 747, including the Respon­
dent’s employees. The letter stated, in part, that on a
specified date, “a vote will be taken to disaffiliate with
the [Novelty Workers], Local 148 and be known as Local
747.” On May 6, the Respondent’s unit employees voted
unanimously to disaffiliate from Local 148.3 On May 12,
Bigham presented to the Respondent’s president a letter
dated May 11 informing him, in part, that “the former
members of Local 747 have voted to disaffiliate with the
[Novelty Workers], Local 148, AFL–CIO. Therefore the
membership will revert back to Amalgamated Local
747.” The letter further instructed the Respondent to
remit dues and send correspondence to Local 747.
The Respondent did not contemporaneously contest
the disaffiliation process or the result of the vote. To the
contrary, after consulting with counsel, the Respondent’s
president agreed to recognize Local 747 as the unit em­
ployees’ exclusive representative and signed a collective-
bargaining agreement with Local 747 on May 12.4 That
collective-bargaining agreement expires July 31, 2002.
Under pressure from Local 148, on or after August 27,
the Respondent withdrew recognition from Local 747
and resumed its recognition of Local 148 as the employ­
ees’ exclusive representative. In January 2000, the Re­
spondent executed a collective-bargaining agreement
with Local 148.
The instant charge was filed on February 16, 2000. It
alleged that the late August withdrawal of recognition
from Local 747 was unlawful.5 Thus, the charge was
filed less than 6 months after the Respondent withdrew
recognition from Local 747 and recognized Local 148.
The judge found that the Respondent did not violate
Section 8(a)(5) and (1) by withdrawing recognition from
terms and conditions of any such agreement. The record indicates only
that the Respondent put into effect the pay raise that had been agreed
to.
2 All subsequent dates are in 1999, unless noted otherwise.
3 The judge characterizes the vote on May 6 as a disaffiliation. No
exceptions were filed to this characterization. Thus, we will refer to it
as a disaffiliation.
4 We correct an inadvertent error in par. 9 of the complaint, repeated
in the introductory paragraph of the judge’s decision, regarding the date
on which the Respondent recognized and signed a contract with Local
747. The date is May 12, 1999, not May 12, 2000. As the instant
charge was filed on February 16, 2000, and as the record establishes
that the Respondent recognized and signed a contract with Local 747
on May 12, 1999, the references to May 12, 2000, are clearly errone­
ous. We also correct the judge’s inadvertent misstatement of the date
on which the complaint alleges that the Respondent withdrew recogni­
tion from Local 747. The correct date, set forth in the complaint, is
August 27, 1999.
5 Neither the charge nor the complaint alleged that the Respondent
violated the Act by recognizing Local 148.
337 NLRB No. 10
ROUTE 22 TOYOTA 85
Local 747. With respect to the May 6, 1999 disaffilia­
tion, the judge found that “the evidence is not particu­
larly clear that the employees, even if they voted to disaf­
filiate from Local 148, also voted to affiliate with Local
747” and that he did “not conclude that a vote to disaf­
filiate from Local 148 automatically constituted a vote to
affiliate with Local 747.” Based on these determinations,
the judge treated the claim for recognition by Local 747
as a claim by a rival union and found that Local 747’s
claim could not defeat that of Local 148. The judge fur­
ther found that there was a “substantial question as to
whether the Complaint, or more particularly the remedy
sought, can succeed because of the procedural failure to
put on sufficient notice a necessary party to this proceed­
ing, namely Local 148.” The judge concluded that
“given the fact that we have here two competing claims
for representation, I think that the matter should properly
be resolved through the Board’s election process.” Ac­
cordingly, the judge dismissed the complaint.
The General Counsel excepts to the judge’s reliance on
evidence outside the 10(b) limitations period—that is, the
circumstances surrounding the May 6 disaffiliation—to
conclude that the Respondent did not violate the Act by
withdrawing recognition from Local 747. We find merit
in the General Counsel’s exception.
Section 10(b) of the Act “confines the issuance of un­
fair labor practice complaints to events occurring during
the 6 months immediately preceding the filing of a
charge.” North Bros. Ford, Inc., 220 NLRB 1021
(1975). The Board has held, in light of the Supreme
Court’s decision in Local Lodge 1424 IAM (Bryan Mfg.
Co.) v. NLRB, 362 U.S. 411 (1960), that a respondent
may not defend against a refusal-to-bargain allegation on
the ground that the underlying original recognition of the
union was unlawful, if it occurred more than 6 months
before charges had been filed in the proceeding rais ing
the issue. See North Bros. Ford , supra . Any such de­
fense is barred by Section 10(b), which, as the Court ex­
plained in Bryan, was specifically intended by Congress
to stabilize bargaining relationships. 362 U.S. at 419.
The Board has similarly applied this rationale to preclude
the untimely attack on the validity of a merger or affilia­
tion process. R.P.C. Inc., 311 NLRB 232 (1993).
In this case, the Respondent recognized and signed a
contract with Local 747 in May 1999. That event was
not attacked within 6 months by any charge. Accord­
ingly, the recognition and contract cannot be assailed as
unlawful.6 Moreover, once the Respondent and Local
747 entered into a collective-bargaining agreement on
6 Thus, we do not pass on whether the vote of May 6 was not only a
vote to disaffiliate from Local 148 but also a vote to affiliate with Local
747.
May 12, Local 747 enjoyed a conclusive presumption of
majority status for the first 3 years of that contract. Au­
ciello Iron Works v. NLRB, 517 U.S. 781, 786 (1996).
The Respondent was not privileged to withdraw recogni­
tion from Local 747. R.P.C. Inc., supra. Thus, we agree
with the General Counsel that the judge erred in finding
that Local 148 presented a valid competing claim for
representation that should be resolved by an election.7
For these reasons, we find that the Respondent violated
Section 8(a)(5) and (1) by withdrawing recognition from
Local 747 during the term of the collective-bargaining
agreement. Accordingly, we will order the Respondent
to take the remedial action ordered below.8 We will sub­
stitute the attached Order for that of the judge.
ORDER
The National Labor Relations Board orders that the
Respondent, Route 22 Auto Sales d/b/a Route 22 Toyota
and Route 22 Automobiles d/b/a Route 22 Honda, Hill-
side, New Jersey, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain collectively with
Amalgamated Local 747 as the exclusive bargaining rep­
resentative of its employees in the following appropriate
unit:
All mechanics and mechanics helpers, all parts depart­
ment employees, lubricators, body men, wash­
ers/polishers, car jockeys, porters, tiremen, undercoat­
ers, used car get ready and partsmen, and all lot men
employed by Respondent at its Hillside, New Jersey
facility, BUT EXCLUDING part time employees,
summer help, new and used car salesmen, service writ­
ers, office/clerical employees, guards, watchmen, pro­
fessional employees, and supervisors as defined in the
Act.
(b) Refusing to honor the terms of the collective-
bargaining agreement reached with Amalgamated Local
747 on May 12, 1999.
7 Accordingly, we disavow the judge’s findings that the complaint
and/or remedy could not succeed because of “the procedural failure to
put on sufficient notice a necessary party to this proceeding, namely
Local 148.” There is no finding herein that Local 148 was charged
with committing, or was found to have committed, an unfair labor
practice, and no finding that the Respondent’s recognition of Local 148
was unlawful. In any event, although not a party to these proceedings,
Local 148 made an appearance on the record and stated its position on
the issue, but filed no motion to intervene.
8 The interest on any payments ordered pursuant to the remedy in
this decision shall be calculated as prescribed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
86 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and bargain collectively with Amalga­
mated Local 747 as the exclusive representative of all the
employees in the appropriate unit and honor the terms of
the collective-bargaining agreement reached with them
on May 12, 1999.
(b) Make employees whole for any loss of earnings
and other benefits ensuing from its unlawful failure to
recognize Amalgamated Local 747 and adhere to the
collective-bargaining agreement.
(c) Pay to Amalgamated Local 747 dues which should
have been, but were not, deducted from employees’ pay-
checks pursuant to valid dues-checkoff authorizations
until the expiration of the May 12, 1999–July 31, 2002,
collective-bargaining agreement, with interest as pre-
scribed in this decision.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig­
nated by the Board or its agents, all payroll records, so­
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this order.
(e) Within 14 days after service by the Region, post at
its Hillside, New Jersey facility copies of the attached
notice marked “Appendix.”9 Copies of the notice, on
forms provided by the Regional Director for Region 22,
after being signed by the Respondent’s authorized repre­
sentative, shall be posted by the Respondent immediately
on receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no­
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
removed its presence from the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em­
ployees and former employees employed by the Respon­
dent at any time since August 27, 1999.
9 If 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 Na­
tional Labor Relations Board” shall read “Posted Pursuant to a Judg­
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re­
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or­
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT refuse to recognize and bargain collec­
tively with Amalgamated Local 747 as the exclusive bar-
gaining representative of our employees in the following
appropriate unit:
All mechanics and mechanics helpers, all parts depart­
ment employees, lubricators, body men, wash­
ers/polishers, car jockeys, porters, tiremen, undercoat­
ers, used car get ready and partsmen, and all lot men
employed by us at our Hillside, New Jersey facility,
BUT EXCLUDING part time employees, summer
help, new and used car salesmen, service writers, of­
fice/clerical employees, guards, watchmen, profes­
sional employees, and supervisors as defined in the
Act.
WE WILL NOT refuse to honor the terms of the collec­
tive-bargaining agreement reached with Amalgamated
Local 747 on May 12, 1999.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees when they are
exercising their rights under Section 7 of the Act.
WE WILL recognize and bargain collectively with
Amalgamated Local 747 as the exclusive representative
of all the employees in the appropriate unit and WE WILL
honor the terms of the collective-bargaining agreement
reached with Amalgamated Local 747 on May 12, 1999.
WE WILL make employees whole for any loss of earn­
ings and other benefits ensuing from our unlawful failure
to recognize Amalgamated Local 747 and adhere to the
collective-bargaining agreement.
ROUTE 22 TOYOTA 87
WE WILL pay to Amalgamated Local 747 dues which
should have been, but were not, deducted from employ­
ees’ paychecks pursuant to valid dues-checkoff authori­
zations until the expiration of the May 12, 1999–July 31,
2002 contract, with interest.
ROUTE 22 AUTO SALES D/B/A ROUTE 22
TOYOTA AND ROUTE 22 AUTOMOBILES D/B/A
ROUTE 22 HONDA
Robert Gonzalez Esq. and Marguerite Greenfield Esq., for the
General Counsel.
Michael T. Scaraggi Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This most
unusual case was heard before me in Newark, New Jersey, on
August 29, 2000. The charge was filed on February 16, 2000,
and the compliant was issued on May 23, 2000. In substance,
the complaint alleges that the Respondent recognized and
signed a contract with Local 747 on May 12, 2000, and thereaf­
ter withdrew recognition from this Union since on or about
August 27, 2000.
What is unusual here is that both prior to and after the al­
leged withdrawal of recognition, the Respondent had also law-
fully recognized another labor organization, namely Local 148,
International Union of Allied Novelty and Production Workers,
AFL–CIO, with whom it asserts that it has a contract. I should
note here that neither the charge nor the complaint makes Local
148 a party in interest in this case and there are no allegations
in any charge or complaint that (1) the Respondent illegally
recognized Local 148, (2) that Respondent illegally entered into
a collective-bargaining agreement with that organization and,
(3) that Local 148 violated the Act by accepting recognition or
illegally made a contract with the Respondent. There is, in fact,
no allegation that the contract made between Local 148 and
Respondent should be set aside even though the effect of the
General Counsel’s theory would be to negate any representa­
tional claim of that labor organization and any contract it has
made with the company. Although not served, a business agent
of Local 148 did show up at the hearing, but did so without
counsel.
In my opinion there is, therefore, a substantial question as to
whether the complaint, or more particularly the remedy sought,
can succeed because of the procedural failure to put on suffi­
cient notice a necessary party to this proceeding, namely Local
On the entire record, including my observation of the de­
meanor of the witnesses, and after considering the briefs filed, I
make the following
1 See Consolidated Edison Co. v. NLRB, 305 U.S. 197 (1938).
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, the 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. It also is concluded that the
Charging Party, Amalgamated Local 747 and Local 148, Inter-
national Union of Allied Novelty and Production Workers are
labor organizations within the meaning of Section 2(5) of the
Act.
II. THE ALLEGED UNFAIR L ABOR PRACTICES
Local 747 was initially recognized by the Respondent in
1992. At that time a collective-bargaining agreement was exe­
cuted covering a variety of mechanics, service employees, and
body parts employees. That contract ran from August 1, 1992,
to July 30, 1995. The president of Local 747 was Edward
Bigham Jr. and Local 747, which was an unaffiliated union,
represented about 800 employees of about 15 employers.
Sometime in 1995, Bigham made an arrangement with the
International Union of Allied Novelty and Production Workers,
AFL–CIO to transfer most of Local 747’s membership into a
newly charted local of the International called Local 911. This
arrangement was confirmed by a letter from Miles Nekolny,
president of the International Union on February 14, 1995. The
letter reads as follows:
This letter will serve as a confirmation of our conver­
sation in Florida regarding your concerns of the affiliation
of Local 747 with the International Union of Allied Nov­
elty and Production Workers, AFL–CIO.
During the first 5 years of our affiliation agreement,
Amalgamated Local 747 may conduct a vote of it mem­
bership to terminate the above referenced agreement.
Such determination shall be by a majority vote of its
membership, which authorized this agreement on behalf of
Local 747.
At any time during the first 5 years of this agreement,
the International. . . . Shall have the right to terminate this
agreement.
In or about March 1995, employees of all the shops under
contract with 747 except for one, elected to transfer their mem­
bership to the newly formed Local 911. The president of 911
was Bigham and he severed his formal relationship with Local
747.
Despite the change, Bigham testified that Local 747 did not
entirely disappear and that it continued to exist to represent the
employees of the one shop whose employees had elected not to
transfer. Local 747 and Local 911 occupied the same building
and the officers of Local 747 were two relatives of Bigham, one
of whom was his mother. Bigham testified that he helped out
Local 747 as a volunteer.
On October 25, 1995, a collective-bargaining agreement was
executed between the Respondent and the newly created Local
911. This contract was retroactive to August 1, 1995, and ran
until July 30, 1998. The document was signed by Bigham on
behalf of Local 911 and by Ignazio Giuffre on behalf of the
Company. For some unknown reason, the company remitted
148.1
88 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
checks for union dues made out to Local 747, but these were
endorsed over to Local 911 and deposited.
At or about the same time, Local 911 entered into a series of
collective-bargaining agreement with other companies whose
employees used to be represented by Local 747 except for the
one exception noted above.
According to Bigham, some time in 1997, Local 911 merged
with Local 148, another and somewhat larger local of the same
International Union. This merger was approved by the Interna­
tional Union’s executive Board. Local 148’s president, Joseph
Nardone, remained in that office and Bigham became the secre­
tary-treasurer. I assume, but no evidence was presented, to
show that this merger was carried out by some sort of vote of
the respective unions’ memberships. In any event, after the
merger, the Respondent did not raise any questions about the
merger and continued to apply the terms of the contract that it
had made with Local 911.
In the summer of 1998, Local 148 entered into negotiations
with the Respondent. According to Bigham, he represented the
Union and essentially reached the terms of a new contract in
August 1998, with Giuffre. At the time of the agreement,
Bigham was employed by Local 148 and was acting as its
agent. The terms and conditions of that agreement were put into
effect by the Respondent in September 1998, even though the
parties had not yet put the agreement in writing and had yet to
conclude certain language regarding a severance fund and a
pension provision.
On November 18, 1998, Bigham sent a copy of a proposed
collective-bargaining agreement to the company. This agree­
ment, by its terms, was to be in effect from August 1, 1998,
until July 30, 2001. The parties listed are the Respondent and
Local 148. Nevertheless, in the second paragraph of the prof­
fered contract, the agreement states:
If the Union should disaffiliate from the Allied, Novelty &
Production workers Union, AFL–CIO, the employer will con­
tinue to recognize the successor labor organization to the ex-
tent permitted by law, and this Agreement shall continue in
full force and effect, and shall be biding upon the Employer
and the successor Labor Organization.
Bigham testified that in the spring of 1999, he decided to
disaffiliate from Local 148 because of differences he had with
Nardone.
According to Bigham, on or about April 19, 1999, on the let­
terhead of Amalgamated Local 747, he sent letters to employ­
ees of the shops which had previously been covered by con-
tracts with Local 911 and its predecessor, Local 747. These
letters stated in substance;
This is to inform all former Local 747 members who are af­
filiated with the International Union of Allied Novelty & Pro­
duction Workers, Local 148 that on [specified date, time and
location in early May, 1999] . . . a vote will be taken to disaf­
filiate with the IUAN&PW, Local 148 and be known as Local
747. Such disaffiliation will enable all former Local 747
members to regain that identity and all privileges and contract
benefits will remain intact.
There will be a question and answer period of half hour be-
fore the vote.
. . . . .
If you have any questions, you can reach me direct at 800–
522–6606.
The actual ballot was not put into evidence and therefore I do
not know the precise question or questions that the employees
voted on. Although I assume that one question was whether to
disaffiliate from Local 148, I do not know if there was a sepa­
rate question as to whether the voters wanted to affiliate with
Local 747. This would, in my opinion, have some significance
because at this time, Local 747 was essentially a stranger to the
employees of the Respondent, not having represented them for
at least 3 years. And to the extent that Local 747 was still alive,
it existed as a small independent organization representing
perhaps 70 or 80 people of one employer.
According to Bigham, employees of the Respondent voted
unanimously in favor of disaffiliation. At other shops, large
majorities also voted in favor of the “disaffiliation.” As noted
above, I can not say with any certainty that the employees at the
same time voted to affiliate with Local 747 which, at the time,
was an independent union having long lost any connection to
the employees who voted.
Bigham did not give any written notice of these elections to
Local 148 or to the International Union and there were no rep­
resentatives of those organizations who either spoke to or oth­
erwise communicated with the employees involved before the
votes were taken.
I also note that although the original agreement between
Bigham and the International Union permitted either party to
opt out within 5 years, there is no evidence that such agreement
was known to or accepted by employers who might be affected.
On May 11, 1999, Bigham representing himself to be an
agent of Amalgamated Local 747, wrote to the Company and
stated:
This is to inform you that the former members of Lo­
cal 747 have voted to disaffiliate with the International
Union of Allied Novelty and Production workers Union,
Local 148, AFL–CIO. Therefore the membership will re­
vert back to Amalgamated Local 747.
All dues, initiation fees and correspondence should be
made out to Amalgamated Local 747 and be forwarded to
the above address. We are going to remain in the Produc­
tion Workers Union, Local 148 Pension Fund. Please con­
tinue to remit the pension monies to the Production work­
ers Union, Local 148 Pension Fund.
There will be no changes in the dues and initiation
fees.
Please notify your bookkeepers immediately of this
change.2
According to Bigham, on May 12, 1999, Giuffre signed a
newly proffered agreement on behalf of the Respondent that
now listed Local 747, instead of Local 148, as a party to the
2 I would assume that similar letters were sent to other employers
where votes were taken.
ROUTE 22 TOYOTA 89
contract. This agreement is substantively the same as the
agreement that he had previously proffered back on November
18, 1998, when Bigham did so on behalf of Local 148.
As of May 12, 1999, Bigham was still an officer and em­
ployee of Local 148 and he did not officially resign from that
organization until June 1999.
Although Bigham tried to get the other employers, where
votes had been taken, to sign agreements with Local 747, they
all refused. Presumably they continued to honor their agree­
ments with Local 148.
In the meantime, and stepping back for a moment, the Inter-
national Union instituted a law suit in the United States District
Court for the District of New Jersey to compel the imposition
of a trusteeship on Local 148. On July 19, 1999, the court en­
tered a Consent Order placing the Local in trusteeship and at
paragraph 4, stated: “It is understood and agreed that all em­
ployees presently covered by collective-bargaining agreements
with Locals 747 or 911 should be members of Local 148 and
shall be transferred to Local 148 forthwith.” Bigham, as an
officer of Local 148 was aware of this proceeding and he and
Nardone were present at various times in court. It is also true
that neither the Respondent nor the old Local 747 were parties
to this lawsuit, albeit none of the employees affected by the suit
had been represented by what remained of Local 747 for at
least 3 years.
Notwithstanding the execution of the agreement with Local
747 on May 12, 1999, the Respondent failed to remit any dues.
When Bigham called to inquire about this, he was told either by
Giuffre, or the Company’s bookkeeper, that they would take
care of it. However, no dues were forthcoming and Bigham
soon began to realize that something was wrong.
On August 9, 1999, Bigham sent a letter to the Respondent
which stated, in pertinent part;
As you have been notified, this union represents the employ­
ees at your facility. Local 747 was certified by the National
labor Relations Board as the exclusive bargaining agent for
the workers at your facility.3 Since then, this union has affili­
ated with the International Union of Allied Novelty & Pro­
duction Workers with a five year escape clause. As we previ­
ously informed you, the members of this Local have chosen to
exercise their contractual right to disaffiliate with this Interna­
tional. In May of this year, the membership voted with an
overwhelming majority of ninety percent in favor of
disaffiliation.
In light of this information, we had requested that you forward
all dues and initiation fees to Local 747. Having been threat­
ened by the Production Workers Union, Local 148, that you
will incur legal fees if you comply with our request, your
company has not done so.
We are now discussing this issue with the International Union
to try to resolve this before pursuing it through the legal sys­
tem.
3 That is an inaccurate statement inasmuch as the Board never certi­
fied Local 747 as the exclusive bargaining representative of the em­
ployees of the Respondent.
Therefore, we are now suggesting that you do not deal with
any union until this matter is resolved. We are also strongly
recommending that you hold all contributions in escrow, ex­
cept medical and dental contributions.4 Do not remit dues, ini­
tiation fees or pension contributions to any union. If you need
to meet with a union representative we would suggest that
you have a representative from both unions present to resolve
any grievances or contractual disputes.
On August 19, 1999, the Company’s attorney, Salvatore A.
Giampiccolo, wrote to Nardone of Local 148 with a copy to
Bigham. This read in pertinent part:
We are aware of the on-going dispute and litigation re­
garding the Unions, as well as the indemnification and ab­
stract of the Consent Order entered by the U.S. District
Court . . . . on July 20, 1999. However, the Dealership is
uncomfortable in the position it has been placed in by the
two Unions. Unless same is resolved and a Court Order is
issued directly to the Dealerships to release the funds to
the Union, the Dealership will escrow all funds to protect
the employees’ interests in a specific account.
In addition, please be advised that Mr. Bigham has
made several appearances at the Dealership regarding the
Union Agreements and employees’ dues. It is apparent
that Mr. Bigham is attempting to persuade employees of
the Dealership to honor the Union Agreement with Amal­
gamated 747. Therefore, unless the above is resolved, the
escrow will not be released to any of the Unions.
Subsequently, the Company hired Labor Counsel Michael T.
Scaraggi. Scaraggi, by letter dated August 27, 1999, advised
Attorney Giampiccollo and Local 148, that the Company
should continue to recognize Local 148 and that in light of the
July 1999 Consent Decree, the company should not remit any
moneys to Local 747. He also advised them that Bigham should
be barred from the Company’s premises.
By letter dated August 30, 1999, Giampiccolo replied to the
effect that the Company would forward all moneys and dues to
Local 148 and that he was in receipt of an Indemnity Agree­
ment from Local 148.
By letter dated November 1, 1999, Bigham wrote to com­
pany president, Giuffre, stating that he was continuing his re-
quest that the Company recognize Local 747 and that in accor­
dance with Section 2 of the May 12 contract, the Company
should remit all dues and correspondence to Local 747.
Bigham noted that failure to comply would result in an unfair
labor practice charge being filed.
On November 19, 1999, a representative of Local 148 exe­
cuted a collective-bargaining agreement with Respondent
which was also signed by the Company on January 7, 2000.
Notwithstanding Bigham’s letter of November 1, 1999, de-
scribed above, the Company did not file an unfair labor practice
charge against itself or against Local 747 claiming that either or
both violated Section 8(a)(2) or 8(b)(1)(A) by virtue of the
granting of recognition to Local 747 in May 1999. Nor did the
4 Under either the proposed contract from Local 148 or the May 12
signed contract with Local 747, the Respondent is responsible for inde­
pendently obtaining and paying for health insurance for its employees.
90 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
International Union or Local 148 file any charges attacking that
recognition, no doubt believing that since the Company, within
3 months, had changed course by withdrawing recognition from
Local 747, there was nothing to complain about; that whatever
recognition that might have been accorded to Local 747 had
been remedied by self-help and that there did not exist any
longer any reason to file any unfair labor practice charges.
III. ANALYSIS
To summarize: The Company initially recognized Local 747
in 1992 when it was an independent union. It then recognized
Local 911, International Union of Allied Novelty and Produc­
tion Workers, AFL–CIO in 1995 when a vote was taken in
1995, pursuant to which most, but not all of Local 747’s mem­
bers, voted to transfer their membership to the newly charted
Local 911. (At the same time the employees of the one em­
ployer who voted not to transfer, remained in Local 747 which
was essentially run by Bigham’s mother with his assistance.)
Thereafter, in 1997, Local 911 went out of existence when it
merged into Local 148. Bigham continued to represent the em­
ployees from the shops which he had represented in the past,
either as Local 747 or 911. In the summer of 1998, Bigham as
a Local 148 representative, made a collective-bargaining
agreement with the company which was implemented in Sep­
tember 1998, before it was put into writing. The written con-
tract, when it was proffered by Bigham, had Local 148 listed as
the Union. At some point in 1998 or 1999, the International
Union filed a lawsuit in Federal District Court seeking to im­
pose a trusteeship on Local 148. (Nardone and Bigham were
involved in that lawsuit.) At or about the same time and for
reasons unknown to me, Nardone and Bigham had a falling out
and Bigham decided that it would be a good idea for the em­
ployees in shops he had previously represented to “disaffiliate”
from Local 148 and its International Union. (At the time of the
original transfer of membership from 747 the International’s
president had advised Bigham that he would have the right to
disaffiliate within 5 years.) In 1999, an election was held in the
shops where employees had previously been represented by
Local 747 and Local 911 and they voted to disaffiliate. Repre­
sentatives of Local 148 and the International did not communi­
cate with employees about this matter. After the vote was
taken, Bigham tried, without success, to get most of the em­
ployers to recognize Local 747 as the new representative.
However, at the Respondent, Bigham did manage to convince
the owner to sign a contract. (Substantively the same agreement
as had been reached with Local 148.) Nevertheless, as Local
148 apparently threatened to sue the Company, the Respondent
essentially retracted its recognition of Local 747 and decided to
continue to recognize Local 148 as the exclusive collective-
bargaining representative.
That is essentially where matters stood at the time of this
hearing. There were two separate labor organizations each
claiming to represent the employees of the Company, and each
having obtained, at different times, recognition and collective-
bargaining agreements from the Company. The last recipient
of such recognition and a signed contract was Local 148.
The question here is whether the Respondent has an obliga­
tion to recognize and bargain with one of two Unions, both of
whom have claims of representation. The General Counsel
asserts that despite Local 148’s representational claim, Local
747’s claim has precedence because even though a new con-
tract was made between the Company and Local 148 (at the
conclusion of Local 148’s previous contract), some, (but
probably a minority), of Local 148’s membership voted to dis­
affiliate from Local 148 (and perhaps to affiliate with Local
747), after which for a brief moment, the Company agreed to
recognize and bargain with Bigham, not as the representative of
Local 148, but rather as the representative of Local 747.
Clearly, as Local 148 was, at the time of the election run by
Bigham, the incumbent and lawfully recognized collective-
bargaining-representative, it had a continuing and substantial
claim to represent the employees of the Respondent. Its rights
cannot, in my opinion, simply be overridden or ignored by a
competing claim by a rival labor organization. Thus, even if
Local 747, as a rival union, had some legitimate basis for
claiming that it and not Local 148, represented a majority of the
Respondent’s employees, and even if Local 148’s contract
would not have served to act as a contract bar (because not
reduced to an executed writing), the employer would not be
free to choose to recognize and bargain with the nonincumbent
union. RCA del Caribe, 262 NLRB 963 (1982). This is be-
cause the incumbent Union (Local 148), would continue to
have a legally recognized presumption of majority status until
that presumption was defeated either by a Board-conducted
election or by an unequivocal demonstration of proof made to
the employer that the employees no longer wanted to be repre­
sented by the incumbent labor organization. Maramont Corp.,
317 NLRB 1035 (1995).
The facts in this case do not convince me that Local 747’s
claim for recognition is so strong that it should defeat the claim
of the incumbent, Local 148, and require the employer to bar-
gain with it rather than Local 148 in the absence of a proper
election to determine the outstanding question concerning rep­
resentation.
As noted above, Local 148 continued to exist and claim rep­
resentation after its 1995–1998 contract ended and after,
Bigham, on Local 148’s behalf, negotiated a new 3-year con-
tract between the Employer and Local 148. Moreover, unlike
the typical case where a vote is taken by an incumbent union to
merge or affiliate into another labor organization, this “disaf­
filiation” vote did not result in the dissolution of Local 148,
which continued to exist and continued to assert in unequivocal
terms, including a threatened law suit, its claim to represent
these employees.5 Finally, the evidence is not particularly clear
that the employees, even if they voted to disaffiliate from Local
148, also voted to affiliate with Local 747 which, at the time,
was a separate labor organization. I do not conclude that a vote
to disaffiliate from Local 148 automatically constituted a vote
to affiliate with Local 747.
5 Cases involving successor unions created as a result of affiliation
or merger votes would include United Mine Worker Local 5741 v.
NLRB, 865 F.2d 733 (6th Cir. 1989); CPS, 324 NLRB 1018 (1997);
Sullivan Bros. , 317 NLRB 561 (1995); Control Services, 303 NLRB
481, 492 (1991).
ROUTE 22 TOYOTA 91
The General Counsel seems to argue that because the Re­
spondent, in May 1999, for a fleeting moment, orally agreed to
bargain with Local 747, this trumps every other consideration
and is sufficient to resolve the case in Local 747’s favor. In
light of all the evidence, I do not think that this is or should be
the case. And given the fact that we have here two competing
claims for representation, I think that the matter should prop­
erly be resolved through the Board’s election process.
CONCLUSIONS OF LAW
The Respondent has not violated the Act in any manner al­
leged in the complaint.
[Recommended Order for dismissal omitted from publica­
tion.]