Sacramento Automotive Association

National Labor Relations Board - Board Decisions

Oct 14, 1971

193 N.L.R.B. 745 (N.L.R.B. 1971)

SACRAMENTO AUTOMOTIVE ASSN. 745
Sacramento Automotive Association , Valley Motor
Car Dealers Council and International Association
of Machinists and Aerospace Workers, AFL-CIO,
District Lodge No . 138, Local Lodge No. 2182,
Petitioner . Case 20-RC-9558
October 14, 1971
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND KENNEDY
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, hearings
were held before Hearing Officer John L. Anderson.
Following a reopened hearing held on April 26, 1971,
and pursuant to Section 102.67 of the National Labor
Relations Board Rules and Regulations and State-
ments of Procedure, Series 8, as amended, this case
was transferred to the National Labor Relations
Board for decision. The Employer and Mel Rapton
Pontiac, herein called Rapton, filed briefs.'
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in connection
with this case to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Section 9(c)(1) and Section 2(6)
and (7) of the Act.
4. The Petitioner seeks an election to determine
whether service writers employed by companies who
are parties to a multiemployer collective-bargaining
contract with the Petitioner wish to be represented as
part of the existing multiemployer unit of service
employees covered by that contract.
Since 1943, Sacramento Automotive Association
and the Petitioner, and their respective predecessors,
i Following the initial hearing held on October 2 and November 19,
1970, the Regional Director issued a Decision and Direction of Election on
March 11 , 1971 Thereafter, Rapton filed with the Regional Director a
motion to reconsider and set aside the aforesaid Decision and to reopen
the hearing for the purpose of permitting Rapton an opportunity to present
evidence On April 8 , 1971, the Regional Director issued an Order
Withdrawing Decision and Direction of Election , Reopening Record, and
Notice of Further Hearing . The reopened hearing was held on April 26,
1971, in which all parties, including Rapton, participated. In view of the
Regional Director's action , we regard Requests for Review filed with the
Board on March 29, 1971, as moot
have engaged in multiemployer collective bargaining
with respect to the service employees.2 Since 1963, the
Association has been comprised of Valley Motor Car
Dealers Council, herein called the Council, which in
turn is comprised of companies that sell and repair
automobiles, and Automotive Maintenance Associa-
tion, herein called AMA, whose members are garages
that repair automobiles.3 Also since 1963, the Associ-
ation has been party to a series of multiemployer
agreements with the Petitioner covering a multiem-
ployer unit of the service employees. The current
agreement is effective from August 1, 1969, to August
1, 1972.
The position of the Employer is that the election
herein sought is inappropriate because the member-
companies have not given it any authority to bargain
for service writers and, in any event, because there is
insufficient community of interest between those
employees and the represented employees. It is also
contended that service writers employed by compa-
nies who are not members of the Council, as described
below, should not be included in any election.
With respect to the Employer's argument that it
lacks delegated authority to bargain on behalf of
service writers, the Board has held that, while mutual
consent is required to establish multiemployer bar-
gaining, the element of consent relates only to the
formation of the multiemployer unit and not to the
scope of the duty to bargain once the multiemployer
unit has been formed. To hold otherwise would lodge
all authority over the composition of the employees in
the bargaining unit in the parties and, in effect,
"deprive the Board of its duty under Section 9 to
decide in each case the appropriate unit that will
assure to employees the fullest freedom in exercising
the rights guaranteed by the Act." 4
As for the scope of the appropriate unit herein, the
Board has also held that, where there is an unrepre-
sented group of employees whose duties justify their
inclusion in an existing multiemployer unit, the scope
of the unit covering such employees should be
coextensive with the existing unit of represented
employees.5
There are more than 50 employees performing
service writer functions among the various companies
covered by the existing contract which relates to the
service employees. Their duties consist of greeting
2 Among the classifications in this group as set forth in the contract are
parts employees , journeymen countermen , automotive technicians,
electrical machinists, body and fender metalmen, auto machinists , radiator
repairmen , painters , and combination glassmen.
3 However, they do not employ service writers such as are requested
herein.
4 Steamship Trade Association of Baltimore, Inc., 155 NLRB 232,
234-235
5 Steamship Trade Association, supra; Hampton Roads Maritime
Association, et al., 178 NLRB 263.
193 NLRB No. 117
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
customers, estimating the costs of repairs, diagnosing
mechanical problems, writing up work orders, and
transmitting the work to service employees who are
also referred to in the record as mechanics. If a
mechanic finds that additional work should be done,
he discusses this with the service writer, who contacts
the customer. Most of the service writers have
previously worked as mechanics and are supervised
by the service manager, who is also in charge of the
mechanics. The usual line of progression is from
mechanic to service writer. The service writers have
substantially the same benefits and working condi-
tions as the mechanics, except for certain fringe
benefits received by the mechanics pursuant to the
collective-bargaining agreement. The service writers
appear to be the only remaining unrepresented
employees employed by the companies, except for
office clericals and salesmen.6
It is clear from the foregoing that service employees
in the existing unit and the service writers are closely
allied in job function and that a sufficient community
of interests exists tojustify the inclusion of the service
writers in the existing unit of service employees if the
service writers wish to be represented as part of that
unit. Accordingly, we find that the service writers
involved herein constitute an appropriate voting
group and we shall direct an election among them to
determine whether they wish to be added to the
existing unit of service employees. If a majority of the
employees in such voting group vote for the Petition-
er, they will be taken to have indicated their desire to
be included in such unit. If a majority of the service
writers vote against representation by the Petitioner,
they will be taken to have indicated their desire to
remain outside such existing unit. In either event, an
appropriate certification of results of election will
issue.
There remains for determination the status of those
service writers employed by Braley and Graham
Buick, Hubacher Cadillac, Inc., and Art Zier Pontiac,
Inc., who became members of the multiemployer
bargaining group and parties to the existing contract
covering service employees, but have since resigned
from the Council, and those employed by Mel Rapton
Pontiac, which never joined the Council. These
companies claim that they are not part of the
presently existing multiemployer bargaining unit of
service employees and therefore that their service
writers should not be included in the voting group
herein. We find no merit in this contention.
8 Other employees of the companies are represented by a separate
multiemployer bargaining agreement with Teamsters Local 165 which
covers parts department employees, lubricators and grease rack men, tow
truck operators , and "miscellaneous help," such as janitorial employees,
battery servicemen , fuel pump operators , and parking attendants
r Greater Peoria Restaurant Association , 131 NLRB 198, 200
8 The William J Burns International Detective Agency, Inc, 182 NLRB
Though having once decided to be bound in
collective bargaining by group action, Braley and
Graham Buick, Hubacher Cadillac, and Art Zier
Pontiac are, of course, free to exercise their right to
withdraw therefrom provided they clearly evince at an
appropriate time their intention of pursuing an
individual course in bargaining.7 Contrary to their
position, however, their resignations from the Council
in the midterm of a contract which does not expire
until August 1972 did not effect a proper timely
withdrawal from group bargaining so far as this
petition is concerned.
Mel Rapton Pontiac became the owner of Mike
Salta Pontiac in August 1970. The latter company was
a member of the Council and party to the existing
multiemployer contract covering service employees.
Rapton Pontiac has continued to operate the business
at the same location and with the same employees as
did Salta. It concedes its obligation as a successor to
Salta to honor the existing multiemployer contract for
its term and had been contributing to the Petitioner's
welfare and pension fund on behalf of its service
employees. At the same time, however, it claims that it
is not part of the multiemployer bargaining unit and
that an election among its service writers as requested
is accordingly inappropriate. It voices the fear that
inclusion in the multiemployer unit might "lock it into
multiemployer bargaining against its will with no
chance to get out."
As a successor to Salta, which we find Rapton
Pontiac is, it stands in the shoes of its predecessor. It is
the Board's view that, in order to fully protect the
employees' exercise of the right to bargain collectively
and to promote the maintenance of stable bargaining
relationship, a successor company is bound to the
contract of its predecessor as if it were a signatory
thereto." We hold therefore that Rapton Pontiac is
bound to the Association contract herein, replacing
Salta as a member of the multiemployer bargaining
unit. Rapton Pontiac's expressed concern that it may
be locked into this bargaining relationship with no
possibility of exit therefrom is without basis in fact.
The current multiemployer contract expires on
August 1, 1972, and, upon the giving of adequate
written notice, Rapton Pontiac and others similarly
situated can, as of that date at least,9 be relieved of all
f urtherjoint bargaining obligations.
Accordingly, we shall include the service writers
employed by Braley and Graham Buick, Hubacher
No. 50, enforcement denied in part 441 F 2d 911 (CA 2) With due
deference to the opinion of the Second Circuit, the Board has decided to
adhere to its position in this case until the Supreme Court of the United
States has ruled otherwise Ranch -Way Inc, 183 NLRB No 116, enfd. 445
F 2d 625 (C A 10), Standard Plumbing and Heating Company, Inc, 185
NLRB No 63.
9 20th Century Press, 107 NLRB 292, 293.
SACRAMENTO AUTOMOTIVE ASSN. 747
Cadillac , Inc., Art Zier Pontiac, Inc., and Mel Rapton
Pontiac in the appropriate voting group.
Having found that an election should be directed
among the employees sought by the Petitioner, we
shall direct an election in the following described
voting group:
All service writers employed by the companies
10 The companies whose service writers are included in the voting group
are Braley and Graham Buick , John Drew Chevrolet, City of Ramblers,
Downtown Ford Sales , Fair Chrysler- Plymouth, Foulks Motor Company,
John Geer Chevrolet, Hubacher Cadillac, Inc, Harrold Ford, Mel Rapton
Pontiac, Suburban Motors, Inc , Sutton Oldsmobile, Town & Country
Lincoln-Mercury , Inc, Swift Dodge , Vandenberg Motors , Art Zier Pontiac,
Inc , Lew Williams Chevrolet , South Sacramento Chrysler-Plymouth,
Southgate Lincoln -Mercury , Inc, and King Dodge
ii The Petitioner questioned the eligibility of Norman Yasue, a
dispatcher and service writer , and of Sandy Mondo, a service writer
trainee, both of whom are employed by Swift Dodge As the record does
not disclose any basis for excluding them , Yasue and Mondo are entitled
to vote, subject to the right of any party to challenge their eligibility
i2 In order to assure that all eligible voters may have the opportunity to
who comprise the multiemployer bargaining unit
represented for collective-bargaining purposes by
Sacramento Automotive Association, Valley Mo-
tor Car Dealers Council,10 excluding all other
employees, guards, and supervisors as defined in
the Act.ii
[Direction of Election 12 omitted from publication.]
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them Excelsior
Underwear Inc, 156 NLRB 1236, N L R B v Wyman-Gordon Co, 394 U S
759 Accordingly, it is hereby directed that an election eligibility list,
containing the names and addresses of all the eligible voters , must be filed
by the Employer with the Regional Director for Region 20 within 7 days of
the date of this Decision and Direction of Election The Regional Director
shall make the list available to all parties to the election . No extension of
time to file this list shall be granted by the Regional Director except in
extraordinary circumstances Failure to comply with this requirement shall
be grounds for setting aside the election whenever proper objections are
filed