Time Chevrolet

National Labor Relations Board - Board Decisions

May 30, 1979

242 N.L.R.B. 625 (N.L.R.B. 1979)

TIME CHEVROLET
East Bay Chevrolet Co., d/b/a Time Chevrolet and
East Bay Automotive Council. Cases 32-CA-347
and 32-CA-651 (formerly 20-CA-13322 and 20-
CA-13124)
May 30, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On June 9, 1978, Administrative Law Judge James
M. Kennedy issued the attached Decision in this pro-
ceeding. Respondent, the General Counsel, and the
Charging Party filed exceptions and briefs. There-
after, Respondent filed an answering brief in opposi-
tion to the Charging Party's exceptions, a motion to
modify, and a request for oral argument. The Charg-
ing Party filed a reply to the motion to modify.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, with
the addition and modifications set out below, and to
adopt his recommended Order.'
1. We agree with the Administrative Law Judge
that Respondent violated Section 8(a)(5) and (1) by
refusing to continue bargaining with the Council on a
single-employer basis for a combined unit of its shop
and sales employees. Consistent with his findings, we
conclude that the combined shop/sales unit was the
recognized unit and an appropriate unit.
Respondent, while under former ownership and a
member of the Association, bargained for many years
for its employees as part of a multiemployer unit.2
Before 1972, the multiemployer unit was confined to
shop employees-mechanics, painters, and car jock-
eys within the jurisidictions of the Machinists, the
Painters, and the Teamsters unions which were affili-
ated with the Council. The Association bargained
separately with the Salesmen's Union for a multiem-
ployer unit of sales employees. In 1972, the Sales-
men's Union, which was already a member of the
Council, gave the Council authority to bargain for it
Respondent's request for oral arguement is hereby denied as the record,
the exceptions, and the briefs adequately present the issues and the positions
of the parties. The motion to modify is also denied.
l The parties stipulated that East Bay Chevrolet was a member of the
Association and a part of the multiemployer bargaining unit, and that Time
Chevrolet is the new name for the same corporation under new management
and ownership effective April 1977. Respondent takes the position it is a
successor employer.
and agreed to a procedure whereby votes of the shop
employees and the sales employees were pooled for
ratification of the bargaining contract. We find that
from that time the multiemployer unit combined shop
and sales employees in a single unit. We rely particu-
larly upon the language of the 1974-77 bargaining
contract between the Association and the Council.
That contract states that it is between the Associ-
ation, the Council, and affiliated locals, and refers to
the labor organizations collectively as the Union.' It
is signed by representatives of the Association, a rep-
resentative of the Council, and a representative of
each of the four affiliates. The recognition clause cov-
ers all employees of Association members under the
work jurisidiction of the four affiliates.4 The contract
is divided into two parts with the wages and condi-
tions of employment for shop employees set out in
part I and those for sales employees set out in part II.
While the two parts are printed in separate booklets,5
they are connected by specific language of the con-
tract.6 We think the express terms of the contract and
the adoption of a pooled-ratification procedure dem-
The opening paragraph of the contract reads:
THIS AGREEMENT made and entered into this first day of June, 1974. by
and between the EASTBAY MOTOR CAR DEALERS, INC., a corporation,
acting for and on behalf of its member dealers, first part). hereinafter
called Employer, and the EASTRAY ALTOMOTIVE COUNCI .and the Lo-
cal Unions affiliated with said Council, EASTnAY AUTOMOTIVE MA( HIN-
ISTS LODGE No. 1546, (affiliated with MACHINISTS AUTOMOTISE TRADES
DISTRICT LODGE No. 190 OF NORTHERN CALIFORNIA),. AUTO, MARINE
AND SPECIALTY PAINTERS' UNION, LO( AL No. 1176. TEAMSTERS AULTO-
MOTIVE EMPLOYEES UNION LOCAL NO. 78, and AUTOMOBILE SALES-
MEN'S UNION No. 1095. second party. signatories hereto, hereinafter
collectively called Union.
Art. 1, among other things. defines "Employer" and "Union" as follows:
(I) The term "Employer" as used herein shall mean the individual
members of the Eastbay Motor Car Dealers. Inc.
The term 'Union" as used herein shall refer to the East Bay Automo-
tive Council, and all of its affiliated Unions signatory hereto or who may
hereinafter become parties to this Agreement.
4Art II. par. (l) reads:
ARTICLE II RECOGNITION AND BARGAINING AGENT
(1) The Employer hereby agrees to recognize the Union as the sole,
exclusive bargaining agent, and this Agreement shall cover all employ-
ees of the Employer who are working or may perform work, coming
within the work junsdiction of the Union as hereinafter described.
Pars. (2), (3), and (4) set forth in detail the work jurisdiction of the Ma-
chinists, the Painters. and the Teamsters Unions. Par (5) states that the work
jurisdictions of the Salesmen's Union "is set forth in Part II of this Agree-
ment."
Although the two parts, in form, appear much like independent con-
tracts. part II does not contain a recognition clause.
I The contract states on the back of the title page to part I that "Part 2 of
the Master Agreement which covers all contract provisions applicable to the
Automobile Salesmen's Union Local 1095 has been printed in a separate
booklet for the convenience of all concerned." Immediately preceding the
signatures on part , the contract states: "Part II of the Collective Bargaining
Agreement covers the Automobile Salesmen's Union No. 1095 contract and
the terms and conditions of Part 11 are fully incorporated herein by reference
thereto." Part I bears the names of the Association, the Council. and each of
the four affiliates. with a signature from a representative of each of the
organizations named. Part II bears the name of the Association, the Council,
and the Salesmen's Union, with places for the signatures of representatives of
the Association and of the Salesmen's Union.
242 NLRB No. 81
625
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
onstrate that the parties intended to merge the previ-
ously separate units rather than merely to engage in
coordinated bargaining for purposes of convenience.7
Accordingly, we conclude that after 1972 the estab-
lished multiemployer unit was a combined unit of
shop/sales employees, a unit not repugnant to the
policies of the Act.8
Upon Respondent's withdrawal from the Associ-
ation and the multiemployer bargaining unit in April
1977, 9 the Council presumptively remained the ma-
jority representative of Respondent's employees in a
single-employer unit. The character of the unit as a
combined shop/sales unit did not automatically
change for reason of the change from bargaining on a
multiemployer basis to bargaining upon a single-em-
ployer basis, and we conclude, as did the Administra-
tion Law Judge, that the evidence does not show that
the parties modified the combined unit. Respondent's
letter withdrawing the multiemployer bargaining and
stating an intention to conduct labor relations in an
individual bargaining unit made no reference to the
composition of the unit. The manner in which Re-
spondent arranged the bargaining meeting of July 5,
1977,' ° and the recognition agreement signed at that
meeting are not sufficient in our view to establish that
the parties modified the existing shop/sales unit. Rep-
resentatives of the Council, including the president of
the Salesmen's Union, were present at the July 5
meeting and presented the recognition agreement as
they had prepared it, referring to "a unit." At the
meeting, Respondent's attorney changed the words
"representative" and "unit" to the plural form, but
left a reference to a single "agreement." He explained
the changes as clarifying the recognition agreement,
and the union representatives did not inspect or ob-
ject to the changes. There is no evidence that Respon-
dent explicitly proposed that the combined unit be
changed to separate units or that the Council and
affiliates affirmatively agreed to such a change.
2. The Administrative Law Judge referred to the
Board the Charging Party's suggestion that the Board
institute proceedings to discipline Respondent's attor-
ney. While the conduct complained of by the Charg-
ing Party may be lacking in good faith, we do not
think disciplinary action is warranted. We deny Re-
spondent's motion to modify the Administrative Law
Judge's Decision by deleting his discussion of the
matter.
7 we consider Consolidated Papers, Inc., 220 NLRB 1281 (1975), and Du-
val Corporation, 234 NLRB 160 (1978), distinguishable on the facts.
a Cf. F. L. Babb, dib/a Babb Motors, 108 NLRB 1140 (1954): Trevellyan
Oldsmobile Company, 133 NLRB 1272 (1961).
'Although the withdrawal was not timely under Retail Associates, Inc.,
120 NLRB 388 (1958), the Council accepted the withdrawal, and there is no
contention that the withdrawal was untimely.
10 Respondent sent separate communications to the Council, the Machin-
ists, the Painters, and the Teamsters, referring to a meeting "to reach an
early agreement between your Union and Time Chevrolet."
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, East Bay Chevrolet Co.,
d/b/a Time Chevrolet, Albany, California, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the said recommended Order, except
that the attached Appendix A is substituted for that
of the Administrative Law Judge.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportu-
nity to present evidence, the National Labor Rela-
tions Board has found that we violated the National
Labor Relations Act and we have been ordered to
post this notice to our employees.
The National Labor Relations Act, as amended,
gives all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representa-
tive they choose
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activity ex-
cept to the extent that the employees' bargain-
ing representative and employer have a collec-
tive-bargaining agreement which imposes
lawful requirement that employees become
union members.
WE WILL NOT withdraw recognition of the
East Bay Automotive Council and its four affili-
ate local unions as the exclusive collective-bar-
gaining agent of our employees in the previously
recognized unit.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
WE WILL immediately recognize and bargain
in good faith with the East Bay Automotive
Council and its affiliate local unions as the exclu-
sive collective-bargaining representative of all
our employees in the appropriate unit and, if an
understanding is reached, embody such agree-
ment in a written, signed agreement which shall
be retroactive in all respects to July 26, 1977. If
626
TIME CHEVROLET
any employee is entitled to backpay as a result of
that contract, we will pay interest on that
amount.
EAST BAY CHEVROI.E C., D/B/A TIME
CItF.VROLEF
DECISION
STATIEMENr OF rHE CASE
JAMES M. KENNEDY, Administrative Law Judge: This
case was heard before me on February 9, 1978, in Oakland.
California, pursuant to a consolidated amended complaint
issued by the Regional Director of the National Labor Re-
lations Board for Region 32 on January 27, 1978. The con-
solidated amended complaint is based upon charges filed by
the East Bay Automotive Council (herein called the Coun-
cil) for and on behalf of itself and its affiliated local unions.
The first charge, Case 32-CA-651 (20-CA 13124), was
filed on July 13, 1977.' The second charge, Case 32 CA
347 (20-CA- 13322), was filed on August 25. The first
charge was originally dismissed on August 10 by the Acting
Director for Region 20. Aftei the Director for Region 32
issued his original complaint in Case 32 CA-347, the Di-
rector for Region 20, on January 16, 1978, partially re-
scinded the earlier dismissal in Case 20-CA-13124 and the
case was transferred to Region 32, where it was given a
Region 32 docket number, 32-CA 651. That revival ap-
pears to have the General Counsel's response to a proce-
dural defense raised by Respondent's answer in case 32-
CA-347 (20-CA- 13322) filed on November 29. On January
27, 1978, the Regional Director for Region 32 ordered both
cases consolidated and issued a consolidated amended com-
plaint on both charges. The consolidated amended com-
plaint is not essentially different from the original com-
plaint of October 31, though it does correct those
allegations in certain minor respects. Both accuse East Bay
Chevrolet Co. d/b/a Time Chevrolet (herein called Re-
spondent) of having engaged in essentially the same viola-
tion of Section 8(a)(5) and (I) of the National Labor Rela-
tions Act, as amended.
Issues
The principal issue in this case is whether or not Respon-
dent can properly rely upon a recognition agreement be-
tween itself and the Council in order to justify its refusal to
bargain with one of the Council's affiliates, Automobile
Salesmen's Union, Local 1095, Retail Clerks International
Association, AFL-CIO. Closely connected to that issue is
whether or not Respondent's attorney. Allen W. Teagle,
engaged in deceitful conduct surrounding the execution of
that agreement.
All parties were given full opportunity to participate, in-
troduce relevant evidence, examine and cross-examine wit-
nesses, argue orally, and file briefs. Briefs, which have been
carefully considered, were filed on behalf of all parties.
I Hereinafter all dates are in 1977 unless oherwise noted
Upon the entire record of the case, and from my observa-
tion of the witnesses and their demeanor. I make the follow-
ing:
FINDIN(iS Of FA( I
I. RESPONDENT S BUSINESS
Respondent admits, and I find, that at all times material
herein it has been a California corporation with its princi-
pal place of business in Albany. California. where it oper-
ates a Chevrolet dealership and sells and services new and
used automobiles. During the past calendar year its gross
revenues exceeded $500,000 and during that same period it
purchased goods and materials valued in excess of $50,000
from sources outside California. Accordingly, it admits and
I find that it is, and has been at all material times. an em-
ployer engaged in commerce and in an industry affecting
commerce within the meaning of Section 2(2). (6). and (7)
of the Act.
II. THE LABOR OR(GANIZATIONS INVOLVEtD
Although Respondent denied, for lack of information.
the General Counsel's allegation that the Council and its
affiliated local unions are labor organizations within the
meaning of Section 25) of the Act. it is clear, based on the
unchallenged testimony of C. L. McMonagle. the chairman
of the Council, as well as the area director of the Northern
California Automotive Machinists. District Lodge 190. that
all five organizations within the meaning of the Act. It ap-
pears from his testimony that four local unions have
banded together to form the Council, an umbrella organiza-
tion which negotiates collective-bargaining contracts with
automobile dealerships in three counties of north-central
California. The four local unions comprising the Council
are: East Bay Automotive Machinists Lodge No. 1546, af-
filiated with Northern California Automotive Machinists.
District Lodge 190, International Association of Machinists
and Aerospace Workers, AFL-CIO; Auto. Marine and
Specialty Painters Union. Local 1176, AFL-CIO; Team-
sters Automotive Employees Union, Local 78, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America; and Automobile Salesmen's
Union, Local 1095, Retail Clerks International Association,
AFL-CIO. Based on McMonagle's testimony. I find all
four groups to be labor organizations within the meaning of
Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRA( II( FS
A. Background
According to McMonagle, the Council has been in exis-
tence since approximately 1938 and since that time has ne-
gotiated many collective-bargaining agreements with auto
dealerships in a three-county area of California (Alameda,
Contra Costa, and San Joaquin Counties). In the greater
Oakland area, it has negotiated with a multiemployer group
known as The East Bay Motor Car Dealers, Inc.. (herein
called the Association). Between 1938 and 1972, the Auto-
mobile Salesmen's Union, although a member of the Coun-
627
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cil, had not given the Council bargaining authority. It nego-
tiated a separate contract with the Association. Insofar as
the other three local unions were concerned, the Council
negotiated on their behalf and signed a single contract cov-
ering employees within their constitutional jurisdictions.
Thus, as of 1972, insofar as the Association was concerned,
there were two multiemployer bargaining units. In generic
terms, one unit consisted of auto mechanics, painters, and
car jockeys. while the other unit consisted of new and used
car salespersons. In 1972, the two units were merged into a
single unit and a single collective-bargaining agreement was
signed on behalf of all four employee "crafts." 2 When that
contract expired in 1974, a second collective-bargaining
agreement was negotiated covering the merged unit. The
second contract expired on May 31, 1977. Thus, as of 1977.
the Association had recognized the Council in a single all-
employee unit for a period of two contract terms.
One of the employers bound by the Association agree-
ments was Respondent corporation which was then known
as East Bay Chevrolet and was under different manage-
ment. In April 1977 the corporation was purchased by its
current owners, who changed its trade name to Time Chev-
rolet. Prior to April, it is clear that Respondent was a mem-
ber of the multiemployer Association bargaining unit and
its employees were covered by the single four-craft agree-
ment.
B. The 1977 Incidents
On April 6, the Council met with the Association in order
to begin negotiating for a new collective-bargaining agree-
ment. On April 28, Respondent's General Manager L. E.
Troyer, utilizing language drafted by Attorney Allen W.
Teagle, wrote the Association, the Council, and the four
affiliated locals a letter advising it was resigning from the
Association and would no longer engage in multiemployer
bargaining. Teagle concluded by saying "I am by this letter
also notifying you that East Bay Chevrolet Co., d/b/a Time
Chevrolet, will conduct all collective bargaining and all
other labor relations matters on its own and separately on
an individual employer basis only and only as an individual
employer bargaining unit." All of the language in that let-
ter, including the quoted portion, deals solely with the mul-
tiemployer side of the bargaining unit. It does not discuss in
any way the unit makeup within the dealership.
Although the Council and McMonagle regarded Respon-
dent's attempt to withdraw from the Association as un-
timely, as indeed it was under the doctrine of Retail Associ-
ates,' the Council erroneously advised its attorneys that
negotiations had not begun until May 6. Based on that in-
formation, the attorneys advised the Council that Respon-
dent had timely withdrawn from the association and was
free to bargain separately from the Association. Thereupon
the Council concentrated its efforts on the Association and
its members and engaged in lengthy collective bargaining
with it. On June 29, the Council commenced an economic
2 The word "craft" as used herein is not intended to denote true craft
status, but is only a short-hand manner, used by the Unions, of describing
the four employee groups within the unit.
3 Retail Associates Inc., 120 NLRB 388 (1958).
strike against the Association members. It also began pick-
eting Respondent's Albany facility.
On June 25, all of Respondent's salespersons had signed
an informal petition saying they no longer wanted Automo-
bile Salesmen's Union Local 1095. Retail Clerks Interna-
tional Association, AFL CIO, to represent them for any'
purpose. Although Teagle and Troyer denied they ever saw
that petition until July 5, nonetheless, on June 30, Teagle
sent a mailgram to the Council, the Teamsters, and the
Painters, requesting a meeting "to reach an early agreement
between your union and Time Chevrolet." As a result of
those wires and some followup telephone calls, a meeting
was scheduled for 9 a.m. on July 5 at McMonagle's office in
south Oakland.
The meeting convened as scheduled. Present for the
Council were McMonagle, "Red" Wallace of the Team-
sters, and Ferd Silva of the Automobile Salesmen's Union.'
Representing Respondent were Teagle and Troyer. The
meeting opened with McMonagle telling Teagle that before
bargaining was to commence, Respondent would be re-
quired to sign a recognition agreement in view of the fact
that it had withdrawn from the Association. When Teagle
offered to obtain such an agreement, McMonagle advised
that he had already prepared one. McMonagle produced it
and gave it to Teagle for his examination.
While there is some conflict in the testimony about what
was said and the order in which the document was signed, it
is clear that after examining the document, Teagle made
some changes. The changes include pluralizing the words
"representative" and "unit," the insertion of the word "for"
and the striking out of the phrase "no later than July 15,
1977." The exact changes may be seen in Appendix B, at-
tached hereto, which is an exact reproduction of the docu-
ment. [Appendix B omitted from publication.] All the
changes appearing there are Teagle's.
McMonagle and Silva recall Teagle explained the
changes as grammatical in nature; Teagle and Troyer say
Teagle told them the changes were for clarity. It is undis-
puted that there was no discussion that the changes were
intended to effect any changes in the bargaining unit.
At that point, McMonagle presented Teagle with a con-
tract proposal following the proposal previously given to
the Association, but limited to a single employer unit. That
proposal dealt with three of the four crafts. While that was
going on, Silva was handwriting a proposal regarding the
salespersons. When McMonagle and Teagle finished their
discussion, Silva gave Teagle the proposal relating to the
sales employees.' The meeting then ended with the parties
agreeing to resume bargaining on July 7.
Teagle and Troyer testified they then left McMonagle's
office and returned directly to the dealership. There, upon
entering Troyer's office, they discovered on Troyer's desk
' Other persons may have been present as well, but they do not appear to
have participated in the meeting in any meaningful way,
I attach no significance to the fact that McMonagle spoke for three of the
crafts while Silva spoke for his own craft. The collective-bargaining contracts
executed in 1972 and in 1974 consisted of two parts. Part I covered the
mechanics, painters, and car jockeys while part II covered the sales person-
nel. These parts were published in separate booklets, but are clearly one
contract. McMonagle and Silva were simply acting as the Council's spokes-
men for their own areas of expertise. There is no reason to conclude, as
Respondent contends, that Silva was bargaining separate and apart from
McMonagle.
628
TIME CHEVROLET
the June 25 petition signed by all the salespersons. Teagle
took that document, returned to his office in San Francisco,
and 2 hours later filed a petition for an election among
Respondent's sales employees, Case 20-RM-2155.6
On July 7, the parties again met at McMonagle's office.
Teagle and Troyer represented Respondent; McMonagle
and Silva were also present. According to McMonagle,
Teagle advised he could not bargain with the Council, in-
cluding the Salesmen's Union, because the RM petition had
been filed. McMonagle testified that since Teagle had said
he would not and could not bargain with the Council, in-
cluding all of the members of the Council, no bargaining
session would be held.
Teagle's version is not significantly different, but says
that his refusal was limited to dealing with the Salesmen's
Union. His testimony was:
I told them since our last get-together, something had
happened that they presumably were aware of. I men-
tioned, in case they weren't, that the employer received
independent objective evidence that the Salesmen's
Union did not represent the salesmen in the salesmen's
unit at Time Chevrolet and a petition for an election
was on file.
That, under those circumstances, the employer was not
in a position to bargain about the salesmen's unit, but
they were very anxious and happy to continue to nego-
tiate with the unions concerning the other units and
the employees covered by the other units in the con-
tracts.
The principal difference between McMonagle's version and
Teagle's is one of characterization. Both agree that Respon-
dent did not intend to negotiate at all regarding its sales-
men. McMonagle says Teagle also refused to bargain with
the Council. Teagle contends he was willing to bargain with
the other unions in the other units. Such testimony impli-
citly rejects the Council as the bargaining representative for
the other three unions as well. Thus, I conclude that
McMonagle's version is, even if conclusionary, correct: Re-
spondent did not intend to bargain with the Council, for it
represented all four local unions.
During this short meeting there appear also to have been
some remarks by McMonagle that Respondent had signed
a recognition agreement with the Council and should honor
it. Furthermore, Teagle appears to have attempted to dis-
cuss a counterproposal regarding health insurance. In the
course of ending the meeting, because Respondent refused
to continue to recognize the Council, McMonagle appar-
ently rejected that counterproposal. The meeting ended
when McMonagle and the other union officials walked out
of the office.
On July 20, the membership of the affiliated locals consti-
tutin, the Council met at the Oakland Teamsters Hall and
A hearing was scheduled on the petition for August 25. Later, according
to Teagle, he learned he had an injunction hearing in state court on another
matter which conflicted and he asked the Regional Director for a I-day
postponement. He says the Director refused to reschedule the hearing and
accordingly, on August 25, he submitted and the Director approved, his
request to withdraw the RM petition. Also on August 25, Troyer wrote a
letter to Automobile Salesmen's Union Local 1095 advising that it was with-
drawing recognition because the "union does not represent a majority of our
employees. ...
presented for ratification the newly negotiated agreement
between the Council and the Association. The votes of the
members of all four locals were pooled, pursuant to the
Council's bylaws, and the resulting tally showed that the
contract was overwhelmingly accepted. The strike against
the Association and its members then ended.
On July 26, in order to reach a stop-gap resolution to the
instant dispute, as the Council continued to picket it, Re-
spondent simultaneously signed an independent agreement
with the Council, limited to the mechanics, painters, and
car jockeys, and a reservation agreement in which the par-
ties agreed that the collective-bargaining agreement cover-
ing those three groups was "without prejudice to the parties
thereto in connection with any dispute that has, or may
hereafter arise concerning the representation status of Au-
tomobile Salesmen's Union Local No. 1095, and the Em-
ployer's employees including but not limited to cases 20-
RM-2155 and 20-CA-13124 [32-CA-651], and that certain
recognition agreement entered into July 5, 1977." The par-
ties have been living under the terms of this stop-gap ar-
rangement since that date, awaiting resolution of the recog-
nition question.
IV. ANALYSIS AND CONCLUSIONS
First, it should be observed that Respondent's procedural
defense, together with its claim that the Regional Office has
somehow trapped it, is totally without merit. Indeed, it ap-
pears frivolous. Respondent argues that the Acting Direc-
tor's dismissal of the first charge on August 10 was a Board
finding to the effect that Respondent could properly rely
upon the salesmen's June 25 statement as a sufficient objec-
tive consideration that they no longer wished to be repre-
sented by Automobile Salesmen's Local 1095 and which
raised a good-faith doubt regarding that union's continued
majority status. Frankly, I am unable to see what that reli-
ance was. Respondent had already negotiated its stop-gap
measure on July 26. Even if the Acting Regional Director
had considered the July 5 recognition agreement at the time
he dismissed the charge, there was no procedural impedi-
ment to the Council's refiling it and submitting additional
evidence. That is exactly what the Council did on August
25.
Moreover, the fact that the second charge was subse-
quently transferred to Region 32, when that Region opened
for business, changes nothing. The right to issue complaints
rests solely within the discretion of the General Counsel as
delegated by him to the Regional Directors. The Director
for Region 32, based on the evidence newly submitted in
support of the second charge, issued his complaint. Later,
when Respondent filed its original answer raising the proce-
dural questions in order to show exactly what had occurred,
the General Counsel directed Region 20 to partially rescind
its earlier dismissal as based upon imcomplete information.
There is no question that the General Counsel has a right,
and, probably the obligation, to reopen a case he has previ-
ously dismissed when newly-discovered evidence justifies it.
Moreover, the fact that two regional offices were involved is
of no moment. Both offices are responsible to the directives
of the General Counsel insofar as the issuance of com-
plaints are concerned and there is no such concept as exclu-
629
DECISIONS OF NATIONAL L.ABOR RELATIONS BOARD
sive jurisdiction among regions. Those geographical lines
are for the administrative convenience of the Agency and
create no procedural rights.
When, on January 25, 1978 (by letter which is not in
evidence), Respondent "appealed" the Director for Region
32's issuance of the instant consolidated amended com-
plaint, Respondent was merely attempting a delaying tac-
tic. The rules provide for no such appeal. They do provide
for the appeal of the dismissal of a charge, but not for the
appeal of a decision to issue a complaint. The General
Counsel's wire of February 8 (in evidence as an attachment
to Respondent's answer to consolidated complaint and
stamped as received on February 9) clearly and accurately
details the General Counsel's authority.'
With regard to the merits of the dispute itself, I find that
Respondent has violated Section 8(a)(5) and (1) of the Act
since July 5 by refusing to recognize and bargain with the
Council in the four-craft unit. I reach this conclusion based
upon the lack of any probative evidence that Respondent
did anything at all to change the scope of the unit other
than to fortuitously obtain its withdrawal from the mul-
tiemployer unit. Its letter of April 28 was directed solely at
that aspect of the bargaining unit and in no way reflected
any intent to somehow split the four-craft unit into four
separate bargaining units. When Respondent managed to
extricate itself from the multi-employer unit, the four-craft
nature of the unit nontheless remained. Moreover, by op-
eration of law, there was a presumption that the Council
continued to represent a majority of the employees within
the four-craft unit.8 Between April 28 and July 5, Respon-
dent did nothing to question the Council's majority status.
On July 5, Respondent, through Teagle, began tinkering
with the four-craft bargaining unit. He made changes, ex-
plained as clarifications, in the recognition agreement.
Teagle argues in his brief that the clarifications were merely
to reflect the changes in unit description as wrought by the
April 28 letter and by his wires of June 29 arranging the
July 5 meeting. However, none of these documents explic-
itly mentions that Respondent desired to divide the single
four-craft unit into four separate units. Certainly there is no
evidence that the Council ever agreed to such a change;
indeed there is no evidence that such a change was ever
explicitly proposed to the Council.
There is no question that the parties are permitted by law
to modify unit descriptions. N.L.R.B. v. Wooster Division of
Borg-Warner Corporation, 356 U.S. 342 at 349-350 (1958).
However, such modifications may not be obtained unilater-
ally, nor may they be obtained by trickery. If a party wishes
to negotiate such a change it must necessarily be clearly
and explicitly communicated to the other party. Indeed, as
in all facets of collective bargaining, candor must be the
7The wire was telephoned to the parties on February 8; written copies
were not actually received until February 9.
'See the "Reno Casino" cases: Tahoe Nugget, Inc., d/b/a Jim Kelley's
Tahoe Nugget, 227 NLRB 357 (1976); Nevada Lodge, 227 NLRB 368 (1976);
Carda Hotels, Inc., d/bl/a Holiday Hotel d Casino, 228 NLRB 926 (1977);
Silver Spur Casino. 228 NLRB 1147 (1977); Sahara-Tahoe Corporation.
d/b/a Sahara-Tahoe Hotel, 229 NLRB 1094 (1977); Nevada Club, Inc.. 229
NLRB 1186 (1977); Finally Inc., d/bla Palace Club, 229 NLRB 1128 (1977);
Sparks Nugget, Inc., d/b/a John Ascuaga's Nugget, 230 NLRB 275 (1977);
Sierra Development Company d/b/a Club Cal-Neva. 231 NLRB 22 (1977);
Ponderosa Hotel & Casino, Inc., 233 NLRB 92 (1977).
watchword. Collective bargaining is not a shell game or an
act of prestidigitation by which one party outwits another.
Certainly Respondent's letter and mailgrams, if they can be
considered an expression of Respondent's desire to negoti-
ate in separate units (a view which I cannot accept), are not
a clearly articulated offer to modify existing bargaining
units. Moreover, the Council's silence with regard to that
alleged offer certainly cannot be deemed an acceptance of
it.
Finally, when on July 5, Teagle "clarified" the recogni-
tion agreement by modifying it in certain respects, he en-
gaged in no further explanation of Respondent's purpose.
If, as he says, he was simply clarifying the document to
reflect his belief that the parties were modifying the bar-
gaining unit, he could easily have said so. He did not. Ac-
cepting for the moment, Teagle's explanation that the
modifications were for clarification, I do not find the
changes to have effected a clarification. In fact, as the Gen-
eral Counsel observes, the changes create ambiguities which
did not exist before. Before the changes, it is clear that the
recognition agreement aimed for a single contract between
the Council as representative of the four affiliates in a single
unit. After the changes, the first paragraph of the agreement
would appear to contemplate multiple representatives in
separate units, but the second paragraph specifically refers
to a single agreement with all the unions. An internal incon-
sistency such as this cannot be explained as a clarification;
it is just the opposite.
And, assuming that the meaning of the first paragraph of
the agreement is accurately expressed therein, Respondent,
on July 7, did not act consistently with it. Instead, it ap-
pears to have attempted to negotiate a single contract with
McMonagle covering the mechanics, painters, and car jock-
eys. but omitting the salesmen. Had Respondent truly in-
tended to split the remaining unit into three parts, it would
have insisted on separate agreements with those three. Yet,
on July 7 it was apparently willing to deal with those three
as a single unit.
All of this leads me to conclude that the changes made by
Teagle in the July 5 recognition agreement were made for
no other purpose than to sever the salesmen from the four-
craft unit. In this circumstance, I cannot credit Teagle and
Troyer's testimony that they discovered the salesmen's June
25 sign-up sheet after the July 5 meeting had been con-
cluded. They undoubtedly were aware of its existence prior
to the meeting. In fact, I have no doubt that the sheet came
to their attention shortly after it was completed. Such a
petition would not have remained in the hands of the sales-
men for 10 days; they would promptly have done some-
thing definitive with it. It is not a coincidence that 5 days
after the sign-up sheet was signed, Respondent asked for
bargaining. I recognize that the day before Respondent's
requests for bargaining were made, the Council and its
members struck the Association and Respondent. It may be
that the strike prompted the requests. More likely, both the
strike and Respondent's awareness of the sign-up sheet
prompted the requests.
Accordingly, I conclude Teagle made the changes on
July 5 in full knowledge of the fact that the salesmen no
longer wished to be represented by the Salesmen's Union.
As an experienced labor relations lawyer, he was well
630
TIME CHEVROLET
aware that they constituted only a portion of a recognized
bargaining unit and that it has long been Board law (craft
severance cases not withstanding) not to permit decertifica-
tion of a portion of a previously recognized appropriate
unit. Gill Glass & Fixture Co., 116 NLRB 1540 (1956). In
order to obtain a decertification election, the salesmen had
to be characterized as a separate appropriate unit. Un-
doubtedly Teagle determined the way to accomplish that
purpose would be to change the recognition agreement's
singular language to plural and immediately file a decertifi-
cation petition claiming the Council had agreed to separate
bargaining units. And, of course, that is precisely what Re-
spondent did.
I conclude such conduct constitutes an unlawful with-
drawal of recognition of the Council as the exclusive bar-
gaining representative of the four-craft unit and thereby
violates Section 8(a)(5) and ( I) of the Act.
V. TIlE REMEDY
Having found that Respondent has engaged in unfair la-
bor practices within the meaning of Section 8(a)(5) and (1)
of the Act, I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act. The affirma-
tive action recommended shall require Respondent to im-
mediately recognize and bargain in good faith with the
Council in the four-craft unit and if an agreement is
reached, to embody such agreement in writing and upon
request to sign it. Moreover, because of Respondent's trick-
ery I shall recommend that the Board order the contract,
including monetary benefits to be derived therefrom, to be
retroactive to July 26, 1977, the date Respondent entered
into the single three-craft contract and the reservation
agreement. Such a remedy is not greatly different from a
retroactive bargaining order in situations where a respon-
dent's reaction to an organizing drive consists of unfair la-
bor practices so serious as to warrant it. See Trading Port.
Inc., 219 NLRB 298 (1975), and its progeny. As observed in
Anna Lee Sportswear, Inc. v. N.L.R.B., 543 F.2d 739 at 744
(10th Cir. 1976) a prospective bargaining order allows the
employer to profit from his own wrongdoing. I cannot al-
low that to occur here.
The Charging Party has asked me to recommend to the
Board that criminal proceedings under Section 12 of the
Act be brought against Teagle because he misrepresented
facts to the Regional Office when he filed Case 20-RM-
2155. Alternatively, it asks that I recommend to the Board
that it begin proceedings to bar Teagle from practicing be-
fore the Agency. While I do not condone Teagle's activity
here, I shall refer the Charging Party's recommendation to
the Board for any appropriate action it wishes to take. I
decline to make either recommendation because at this time
the Board has not articulated any clear guidelines in either
area.
The Charging Party has also asked for the extraordinary
remedy that it be awarded costs and attorney fees because
the litigation is "patently frivolous." While I agree that this
litigation nearly reaches that level, I do not believe the liti-
gation to be "totally without merit." See Daliel Supply
Company, 235 NLRB 56 (1978). Compare Tiidee Products,
Inc., 194 NLRB 1234 (1972) and Heck's, Inc., 215 NLRB
765 (1974). I therefore decline to recommend that remedy.
Upon the foregoing findings of fact, and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
I. The Respondent, East Bay Chevrolet Co. d/b/a Time
Chevrolet. is an employer engaged in commerce and in an
industry affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. East Bay Automotive Council and its affiliates, East
Bay Automotive Machinists Lodge No. 1546, affiliated with
Northern California Automotive Machinists, District
Lodge 190, International Association of Machinists and
Aerospace Workers, AFL-CIO: Auto, Marine & Specialty
Painters Union, Local 1176, AFL-CIO; Teamsters Auto-
motive Employees Union, Local 78, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America; and Automobile Salesmen's Union Local
1095, Retail Clerks International Association, AFL CIO
are all labor organizations within the meaning of Section
2(5) of the Act.
3. Those employees as described by the 1974 1977 col-
lective-bargaining argreement between East Bay Motor Car
Dealers, Inc., and East Bay Automotive Council (except for
any reference to a multiemployer unit) constitute an appro-
priate unit for collective bargaining within the meaning of
Section 9(b) of the Act.
4. At all material times the East Bay Automotive Coun-
cil has represented a majority of Respondent's employees in
the bargaining unit described above and by virtue of Sec-
tion 9(a) of the Act has been and is now the exclusive rep-
resentative of all Employees in that unit for the purpose of
collective bargaining.
5. Since on or about July 5, 1977, Respondent has vio-
lated Section 8(a)(5) and () of the Act by withdrawing
recognition from East Bay Automotive Council and by re-
fusing to bargain with it over employees in the appropriate
unit.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
ORDER9
The Respondent, East Bay Chevrolet Co. d/b/a Time
Chevrolet, Albany, California, its officers, agents, succes-
sors, and assigns, shall:
I. Cease and desist from:
(a) Withdrawing recognition from and thereby refusing
to bargain in good faith with East Bay Automotive Council
and its affiliate local unions.
9 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulatior.s 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, he adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
631
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Immediately recognize and bargain collectively in
good faith with the East Bay Automotive Council and its
affiliate local unions as the exclusive representative of the
employees in the appropriate bargaining unit herein and if
an understanding is reached, embody such agreement in a
written signed contract which shall be retroactive in all re-
spects to July 26, 1977.
(b) If any employees are entitled to backpay as a result
of the contract described above, interest shall be paid on
such amounts in accordance with the Board's decision in
Florida Steel Corporation, 231 NLRB 651 (1977).'0
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
10See. generally. Isis Plumbing d Heating Co., 138 NLRB 716 (1962).
sary to analyze the amount of backpay which may become
due under the terms of this Order.
(d) Post at its place of business in Albany, California,
copies of the attached notice marked "Appendix A."" Cop-
ies of the notice, on forms provided by the Regional Direc-
tor for Region 32, after being duly signed by an authorized
representative of Respondent, shall be posted by Respon-
dent immediately upon receipt thereof and be maintained
by it for a period of 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that the notices are not al-
tered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 32, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
" In the event that this Order is enforced by ajudgment ofa United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
632