Towne Ford Sales

National Labor Relations Board - Board Decisions

Apr 30, 1984

270 N.L.R.B. 311 (N.L.R.B. 1984)

TOWNE FORD SALES
Towne Ford Sales and Town Imports and Intern-
tional Association of Mahinist and Aerospace
Workers, AFLCIO, District Lodge No. 190,
Local Lodge No. 1414. Case 20-CA-17471
30 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 24 June 1983 Administrative Law Judge
Earldean V. S. Robbins issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed a letter
and brief in opposition to the exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The judge concluded that the Respondent violat-
ed Section 8(aX5) and (1) of the Act by refusing to
recognize the International Association of Ma-
chinsts and Aerospace Workers, AFL-CIO, Dis-
trict Lodge No. 190, Local Lodge No. 1414 as the
exclusive representative of its employees at its
Town Imports facility, by refusing to acknowledge
that Town Imports is bound by the collective-bar-
gaining agreement between the Respondent's
Towne Ford Sales facility and the Union, and by
failing to comply with all the terms and conditions
of said agreement as to the mechanics of Town Im-
ports. The judge found that Town Imports' me-
chanics constitute an accretion to the appropriate
unit covered by the collective-bargaining agree-
ment between Towne Ford Sales and the Union. In
so doing, she determined that the factors favoring
accretion outweighed the factors militating against
it. We disagree.
The Respondent, Towne Ford Sales and Town
Imports, is a single employer operation engaged in
the retail sale, service, and distribution of automo-
biles. Towne Ford Sales and the Union have been
parties to successive collective-bargaining agree-
ments covering Towne Ford Sales mechanics for a
number of years. The current agreement is effec-
tive through 15 July 1983 and thereafter for 1-year
terms subject to revision by either party. In August
1982, the Respondent's president formed Town Im-
ports for the distribution, retail sale, and service of
Mitsubishi automobiles. The new corporation was
housed in Towne Ford Sales' former used-car
showroom and new-car preparation and condition-
270 NLRB No. 55
ing facility, across the street from Towne Ford
Sales' main location. This facility was renovated
for Town Imports and the two Towne Ford Sales
mechanics working in the preparation and condi-
tioning department were moved to Towne Ford's
main offices. Town Imports hired a mechanic in
August 1982 and a second one 29 November 1982.
In September 1982 the Union requested that the
Respondent sign a letter of understanding by which
the Respondent agreed that the employees who
worked at Town Imports would be covered by the
Union's existing agreement with Towne Ford
Sales. The Respondent refused and on 15 October
1982 the Union filed the charge in this proceeding.
Towne Ford Sales and Town Imports have
common offices, common ownership, and common
management at the policymaking level. The two
enterprises engage in joint advertising and have a
joint salesmen corps. Their president formulates the
labor policies affecting the employees of both
Companies. He spends approximately 30 percent of
his working time running Town Imports..The me-
chanics of Towne Ford Sales perform work on do-
mestic cars while Town Imports mechanics work
on foreign cars. Town Imports mechanics use some
of Towne Ford Sales equipment and tools and
Towne Ford Sales mechanics occasionally work on
Town Imports cars. The two groups of employees
possess the same job skills and utilize similar tools
and equipment. The locations are across the street
from each other. However, Towne Ford Sales and
Town Imports each has its own service manager
who hires the mechanics and directs the work in
each of the facilities. Thus, there is no common im-
mediate supervisor and no day-to-day contact be-
tween the two groups of employees.
The Board has followed a restrictive policy in
finding accretion because it forecloses the employ-
ees' basic right to select their bargaining represent-
ative. We stated in Melbet Jewelry Co., 180 NLRB
107, 110 (1969), that the Board "will not, under the
guise of accretion, compel a group of employees,
who may constitute a separate appropriate unit, to
be included in an overall unit without allowing
those employees the opportunity of expressing their
preference in a secret election."
In examining this issue, the Board has identified
several factors as especially important in a finding
of accretion. One of these elements is the degree of
interchange of employees between the affiliated
companies. Mac Towing, 262 NLRB 1331 (1982).
No weight is assigned to the fact that interchange
is feasible when in fact there has been no actual
interchange of employees. Combustion Engineering,
195 NLRB 909, 912 (1972). Another important ele-
ment is whether the day-to-day supervision of em-
311
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees is the same in the group sought to be ac-
creted. Save-It Discount Foods, 263 NLRB 689
(1982); Weatherite Co., 261 NLRB 667 (1982). This
element is particularly significant, since the day-to-
day problems and concerns among the employees
at one location may not necessarily be shared by
employees who are separately supervised at an-
other location. Renzetti's Market, 238 NLRB 174,
175 (1978).
In the instant case, although Towne Ford Sales
mechanics might occasionally work on Town Im-
ports cars, there is no evidence of "actual" inter-
change of employees or of any regular contacts be-
tween the mechanics employed at the two loca-
tions. It is also apparent that the daily operations of
the facilities are separate and autonomous and that
the day-to-day control and supervision of matters
of interest to the employees are handled entirely
within each of the facilities by the respective serv-
ice managers. The control by the Respondent's
president of general policy does not detract from
the significance of either the independent supervi-
sion of the employees on daily matters and con-
cerns or the lack of interchange among the two
groups of employees.
Accordingly, we find that the other factors in
the instant case are insufficient to establish accre-
tion in the face of separate daily supervision and
lack of interchange. Based on the foregoing, we
conclude that the General Counsel has not estab-
lished by a preponderance of the evidence that the
mechanics at Town Imports constitute an accretion
to the existing collective-bargaining unit represent-
ed by the Union. Therefore, we shall dismiss the
complaint in its entirety.
ORDER
The complaint is dismissed.
DECISION
STATEMENT OF THE CASE
EARLDEAN V. S. ROBBINS, Administrative Law Judge.
This matter was heard before me in San Francisco, Cali-
fornia, on April 7, 1983. The charge was filed by Inter-
national Association of Machinists and Aerospace Work-
ers, AFL-CIO, District Lodge No. 190, Local Lodge
No. 1414, herein called the Union, on October 15, 1982,
and was served on Towne Ford Sales and Town Im-
ports, herein respectively called Ford and Imports and
collectively called Respondent, on October 16, 1982. The
complaint, which was issued on November 24, 1982, al-
leges that Respondent violated Section 8(a)(1), (3), and
(5) of the National Labor Relations Act, herein called
the Act. The basic issues herein are whether the mechan-
ics at Import are an accretion to the mechanics unit at
Ford and whether Respondent violated Section 8(aXl)
and (5) of the Act by refusing to apply the Ford collec-
tive-bargaining agreement to Import employees.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material herein, Ford, a California corpo-
ration with an office and place of business at 1601 El
Camino Real, Redwood City, California, herein called
the Ford facility, has been engaged in the retail sale,
repair, and distribution of automobiles. During the past
calendar year ending December 31, 1981, Ford, in the
course and conduct of said business operations, derived
gross revenues in excess of $500,000, and purchased and
received at said facility products, goods, and materials
valued in excess of $50,000 directly from points outside
the State of California.
About mid-August 1982, Ben Kopf, president of Ford,
formed Imports, a California corporation with an office
and place of business at 1555 El Camino Real, Redwood
City, California, which is engaged in the retail sale, serv-
ice, and distribution of Mitsubishi automobiles.
At all times material herein, Ford and Imports have
been affiliated business enterprises with common offices,
ownership, and management at the policymaking level.
They have engaged in joint advertising and the president
for both entities formulates labor policies affecting em-
ployees at said operations. The complaint alleges, the
parties stipulate, and I find that, by virtue of these oper-
ations, Ford and Imports constitute a single integrated
business enterprise and a single employer within the
meaning of the Act, and is now, and at all times material
herein has been, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find
that the Union is now, and has been at all times material
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Ford and the Union have had a collective-bargaining
relationship for a number of years covering Ford's me-
chanic employees and have been parties to successive
collective-bargaining agreements. The current agree-
ment, effective by its terms from July 16, 1980, to July
15, 1983, provides, inter alia:
SECTION I
Recognition
The Employer hereby recognizes the Union as
the sole collective bargaining agent for all employ-
312
TOWNE FORD SALES
ees coming under the jurisdiction of the Union ex-
clusive of supervisory personnel.
SECTION II
Work Jurisdiction
The work covered by this Agreement is, and
shall be, the erecting, assembling, installing, repair-
ing, or dismantling of all or any parts thereof of
automobiles, automobile engines, and motors, driv-
ing, or driven parts thereof, and all electrical de-
vises pertaining thereto, whether driven by gasoline,
oil, diesel, butane, or electricity, including all fabric
or metal appurtenances thereto, composed of steel
or iron, whether structural, angle, T, galvanized,
bar, tube, rod, shafting, sheet or plate, or of nickel,
bronze, lead, copper, brass, aluminum, babbit, or
other metal substances thereof.
All Oxy-acetylene, helearc, or electric cutting or
welding when used to substitute the former method
of performing automobile work, including building,
repairing, and dismantling.
The repairing, refinishing, and maintaining of all
automobiles, trucks, tractors, trailers, motorcycles,
or other automotive repair work.
Prior to mid-August 1982,1 the Ford facility included a
new car showroom at 1601 El Camino Real. Behind the
showroom was a lubrication area and, to the rear of that
area, the main shop facility. The body shop was located
on an adjoining property, and across the street, at 1555
El Camino Real, was located the used car showroom, a
storage area, and the new car preparation and condition-
ing department and detail shop. Body shop mechanics
and painters worked in the body shop, new car prepara-
tion mechanics and detailers worked at 1555 El Camino
Real, and other mechanics worked in the main shop at
1601 El Camino Real.
Ben Kopf was, and is, the president and owner of
Ford. In mid-August, Kopf formed Imports and entered
into negotiations with Mitsubishi for Imports to be grant-
ed a franchise for the retail sale, service, and distribution
of Mitsubishi automobiles. The facility at 1555 El
Camino Real was renovated to house Imports and the
Ford new car preparation and detail departments, with
two mechanics, were moved to the 1601 E1l Camino Real
location.
According to Kopf, the building renovations, which
were completed during the first week in November,
were made so as to completely separate the Imports fa-
cility at 1555 El Camino Real from the Ford facility at
1601 El Camino Real. However, he admitted that during
the period of the renovation construction possibly some
Imports parts were stored at Ford and that the Ford
hoists were not removed from the Imports facility. He
denied that Ford tools were used by Imports and testi-
fied that Imports purchased all new equipment. Also, ac-
cording to Kopf, Imports and Ford have completely sep-
arate corps of salesmen. He admitted, however, that, if a
Ford salesman cannot sell a customer a Ford car, he sug-
All dates herein will be in 1982 unless otherwise indicated.
gests a Mitsubishi and, if the customer is interested, the
customer is turned over to an Imports salesman. If the
customer purchases a car from Imports, the Ford and
Imports salesmen split the commission. The same proce-
dure in reverse is followed with a customer who initially
visits the Imports showroom.
Kopf also testified that Imports salesmen and Ford
salesmen have different business cards. When shown a
business card which indicated that the salesmen sell both
Ford and Mitsubishi automobiles, he testified that the
card was one that was used in the beginning before the
policies between Ford and Imports were set. However,
the undenied testimony of Ford mechanic employee
Donald Grossman, which I credit, is that these business
cards were given to him by Ford salesmen on the day
preceding the hearing when he requested them to give
him one of their business cards. Further, both Grossman
and Larry Knight, another mechanic employed by Ford,
testified, without contradiction, that Imports mechanics
use Ford transmission jacks, battery jumpers, and acety-
lene welding equipment and that Imports disposes of its
garbage in Ford's garbage dumpster. Also, according to
Grossman, Ben Hooper, Imports' service manager, was
observed on one occasion placing an Imports order on a
Ford purchase order form.
Kopf testified that there is no interchange of employ-
ees between Ford and Imports. However, employee wit-
nesses testified, without contradiction, that they have ob-
served Ford mechanics doing undersealing, painting,
checking and readjusting alignment, and battery work on
Imports cars and also, on at least one occasion, assisting
the Imports service manager in checking new cars on de-
livery. Kopf admitted that Ford does body work, under-
sealing, front end alignments, brake work, upholstery
work, and tire work for Imports. According to him, this
is done in accordance with a contractual arrangement
and, further, Ford regularly does body work for other
dealers and Imports contracts out various types of me-
chanical work to shops other than Ford. However, no
documentary evidence was offered to support this testi-
mony.
Imports' first sale was consumated on September 24,
approximately 5 weeks before the renovation was com-
pleted at 1555 El Camino Real. At the time Imports
commenced operations, which Kopf testifies was on
completion of the renovation during the first week in
November, Ford had 17 mechanics in its employ. Im-
ports had one mechanic in its employ, who was hired in
August and immediately sent to school. After completing
several weeks of training, his initial job duties, commenc-
ing October 1, were to prep and condition the new Mit-
subishi cars.2 As the renovation was not yet complete,
he initially worked in temporary quarters at Ford's main
shop. 3 A second mechanic commenced work on Novem-
ber 29.
2 According to Kopf, the startup duties of mechanics in a new fran-
chise operation are generaly limited to prep and conditioning work and
warranty work. Retail service work is not generally done for the first
few months.
a Although subsequently retracted by Kopf, I credit Koprs initial teati-
mony in this regard since Imports' facility was still being renovated
during the first month of the mechanic's employ.
313
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ben Hooper, Ford's parts and department manager,
worked both in that position and as Imports' service and
parts manager from the time Imports commenced oper-
ations until January 1, 1983, when he ceased working for
Ford and commenced full-time employment at Imports.
At Ford, mechanics are hired, and their work is directed,
by the Ford service manager with specific work assign-
ments being made by the Ford dispatcher. At Imports,
mechanics are hired and work is assigned and directed
by the Imports service manager.
Although the parties stipulated that Ford and Imports
are a single integrated business enterprise and a single
employer within the meaning of the Act, and that Kopf
formulates the labor policies at both operations, Kopf
testified that he has no involvement in the day-to-day op-
eration of Imports, and that the only thing he does there
is to set policy. According to him, he has no office at
Imports and he spends 99 percent of his time at Ford.
However, in his November 15 affidavit, he stated, "I
devote about 30% of my time directing and running
Town Imports." In explaining this inconsistency, he testi-
fied that as of the date of the affidavit he was in the
process of forming Imports and had to spend perhaps 20
to 30 percent of his time in obtaining permits and "get-
ting things together" for the corporation and the renova-
tion of the building facility. I do not credit this explana-
tion since by November 15, according to his testimony,
the corporation was formed and had commenced oper-
ations, and the renovation was complete. In these cir-
cumstances, I find his prehearing affidavit to be more re-
liable.
Lee Stafford, business representative for the Union as-
signed to service Towne Ford, testified that he first
learned about the organization of Imports around the
first week in August through a rumor from the Ford
shop employees that Ford was going to take on a new
Mitsubishi franchise. No specific company name was
mentioned. Around the second week in August, accord-
ing to Stafford, Kopf telephoned him and asked whether
Ford employee Manny Calassa could take a withdrawal
from the Union if he went to work for the new Mitsubi-
shi franchise if it was nonunion. Stafford told Kopf that,
if Calassa was working with the tools of the trade, he
could not take a withdrawal card, and that he would
either have to drop from the Union or continue paying
dues. Kopf did not mentioned the name of the new com-
pany. Kopf further said that the mechanic hired would
have to go to school in Los Angeles the first or second
week in September and that he wanted to get the matter
settled so he could send whoever was going to work for
the new company to this school. Stafford further testified
that he does not think that during this conversation Kopf
actually said he was going to operate the new store non-
union; rather, he suggested that he preferred that any
person transferring to the new company should not be an
active union member.
Kopf agreed that he did inquire as to whether Calassa
could withdraw from the Union and transfer to Imports.
However, according to him, Stafford said it could be
done one or two different ways. One was that Calassa
could transfer, pay his union dues, and "work under the
union agreement solely"; but Imports would not have to
sign a union contract. Kopf said that was agreeable with
him and Stafford never stated the second possibility.
A week or so later, according to Stafford, he tele-
phoned Kopf and arranged to meet with him on Septem-
ber 2. The meeting did take place. Dave Powell, a
Teamsters representative, was also present. There was
some discussion as to Calassa. Kopf said he did not think
that Calassa was going to transfer to Imports. Stafford
then gave Kopf a letter of understanding which stated
that the employees who worked at the Mitsubishi fran-
chise would be covered by the working conditions and
benefits of the Union's existing agreement with Ford.4
Kopf asked if the letter of understanding would cover
just one employee. Stafford replied no, and that any em-
ployee employed by the new company to do bargaining
unit work would be covered under the letter of under-
standing. The Teamsters representative presented an
identical letter regarding the job classifications represent-
ed by the Teamsters Union. Kopf said he would have his
attorney look at the letters, and that he was leaving for
vacation and would return around September 20 or 25.
Around September 20, Stafford began leaving telephone
messages for Kopf to telephone him. On September 23,
Kopf returned the calls. At this time, according to Staf-
ford, Kopf said that he had decided he was going to hire
a person, and that the new company was going to oper-
ate nonunion and he was not going to sign the letter of
understanding.
Kopf testified that, to the best of his recollection, Staf-
ford gave him the letter of understanding and told him
he would have to sign it in order for Calassa to work for
the new company. Kopf asked what would be involved
if he hired another person, i.e., would that person have
to join the Union. Stafford said, yes, under these condi-
tions. Kopf said that was not acceptable, and that it was
not what they had originally agreed to on the telephone.
B. Conclusions
Although Respondent admits that Ford and Imports
are a single employer, this does not necessarily establish
that an employerwide unit is appropriate since the fac-
tors relevant in identifying the breadth of an employer's
operation are not conclusively determinative of the scope
of an appropriate unit. South Prairie Construction v. Oper-
ating Engineers, 425 U.S. 800, 805 (1976). However, even
though the factors considered by the Board in determin-
ing accretion issues are substantially the same as those in-
volved in determining appropriate units, the Board and
the courts have consistently construed the Board's accre-
tion doctrine narrowly.
The rationale for such narrow construction is that,
where absorption of a new facility into an existing larger
facility is in the issue, the employees' rights of self-orga-
nization under Section 7 of the Act are more at stake
than in initial representation proceedings since the em-
ployees at the new facility would be deprived of the op-
portunity to participate in a resolution of the representa-
' Stafford testified that the reason he was seeking a letter of undert-
sanding was that the Union had been told that Ford and the Mitsubishi
dealership would be two separate companies.
314
TOWNE FORD SALES
tion issue. Sheraton-Kauai Corp. v. NLRB, 429 F.2d 1352
(9th Cir. 1970). The Board "will not ... under the guise
of accretion, compel a group of employees, who may
constitute a separate appropriate unit, to be included in
an overall unit without allowing those employees the op-
portunity of expressing their preference in a secret elec-
tion or by some other evidence that they wished to au-
thorize the Union to represent them." Melbet Jewelry Co.,
180 NLRB 107, 110 (1969).
The facts considered by the Board as "particularly rel-
evant" in determining whether there has been an accre-
tion are "bargaining history; the functional integration of
operations; the differences in the types of work and the
skills of employees; the extent of centralization of man-
agement and supervision, particularly in regard to labor
relations, hiring, discipline, and control of day-to-day op-
erations; and the extent of interchange and contact be-
tween the groups of employees." Bryan Infants Wear Co.,
235 NLRB 1305 (1978), Safety Electric Corp., 239 NLRB
40 (1978); Arundel Corp., 252 NLRB 397 (1980).
Here, Imports has no bargaining history. Both groups
of employees utilize the same skills and the same type of
tools and equipment. Kopf is responsible for the overall
management of both Imports and Ford, including the
labor policy. The two locations are in close geographical
proximity. Imports' mechanics use Ford's tools and Ford
mechanics work on Import cars." All of these factors
support an accretion. Militating against a finding of ac-
cretion are the lack of common immediate supervision of
the two groups of employees and the lack of evidence as
to day-to-day contacts between them. However, on bal-
ance, I conclude that the relevant factors support a find-
ing that Imports' mechanics do not constitute a separate
appropriate unit but rather constitute an accretion to the
Ford unit represented by the Union. Safety Electric Corp.,
above.
Accordingly, I find that Respondent violated Section
8(a)(5) and (1) of the Act by refusing to apply the terms
and conditions of the collective-bargaining agreement be-
tween Ford and the Union to the mechanics in Imports
employ.
CONCLUSIONS OF LAW
1. Towne Ford Sales and Town Imports are a single
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. International Association of Machinists and Aero-
space Workers, AFL-CIO, District Lodge No. 190,
Local Lodge No. 1414 is a labor organization within the
meaning of Section 2(5) of the Act.
3. The following employees constitute a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
I In view of Grossman's uncontradicted testimony that on at least one
occasion Ford mechanics worked on an Imports car without a repair
order, and Kopf's lack of credibility in other regards coupled with the
failure to offer documentary evidence to support his testimony, I do not
credit Kopt that Imports contracted work out to Ford on a competitive
basis.
All machinists, mechanics, apprentices, painters and
body men, including the service writers employed
by the Employer at their facilities in Redwood City,
California; excluding employees covered by collec-
tive bargaining agreements with other unions, office
clerical employees, guards, and supervisors as de-
fined in the Act.
4. At all times material herein the Union has been, and
is now, the exclusive representative of all employees in
the above-described appropriate unit for the purposes of
collective bargaining.
5. By refusing to recognize the Union as the collec-
tive-bargaining representative of all the employees in the
above-described unit; by refusing to acknowledge that
Town Imports is bound by the collective-bargaining
agreement between Towne Ford Sales and the Union;
and by failing to comply with all the terms and condi-
tions of the aforesaid agreement as to unit employees on
Town Imports' payroll, Respondent has engaged in and
is engaging in unfair labor practices within the meaning
of Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices within the meaning of Section
8(a)(1) and (5) of the Act, I shall recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the purposes of the Act.
Since I have found that the mechanic employees in the
employ of Town Import are an accretion to the unit of
mechanic employees at Towne Ford Sales and that Re-
spondent has violated Section 8(a)(5) and (1) of the Act
by refusing to apply the collective-bargaining agreement
between Towne Ford Sales and the Union to employees
on Town Imports' payroll, Respondent shall be ordered
to recognize the Union as the exclusive bargaining repre-
sentative of all the employees in the appropriate unit, and
to give effect to the terms and provisions of the collec-
tive-bargaining agreement between the Union and
Towne Ford Sales retroactively and prospectively. I
shall also recommend that Respondent make whole unit
employees for any loss of earnings or benefits they may
have suffered by the unlawful refusal to apply the terms
of the collective-bargaining agreement to them, plus in-
terest, and reimburse the trust funds provided for in the
collective-bargaining agreement for those contributions
Respondent has failed to make on behalf of unit employ-
ees. All backpay is to be computed in the manner pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
and Florida Steel Corp., 231 NLRB 651 (1977).6
[Recommended Order omitted from publication.]
a See generally Isis Plumbing Co., 138 NLRB 716 (1962).
315