Young's Market Company

National Labor Relations Board - Board Decisions

Dec 7, 1982

265 N.L.R.B. 687 (N.L.R.B. 1982)

YOUNG'S MARKET COMPANY
Young's Market Company and Lawrence E. Rodri-
gues, Petitioner and Sales Drivers, Helpers &
Dairy Employees Union, Local 683, affiliated
with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America.
Young's Market Company and Edward Halligan, Pe-
titioner and General Truck Drivers, Office,
Food and Warehouse Local 952, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Cases 21-
RD-1825 and 21-RD-1826
December 7, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS JENKINS AND HUNTER
On October 2, 1981, Lawrence E. Rodrigues, an
individual, filed a petition seeking to decertify Sales
Drivers, Helpers & Dairy Employees Union, Local
683, affiliated with the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America' as the exclusive collective-
bargaining representative of the commissioned
salesmen employed by the Employer at its San
Diego, California, facility. On October 9, 1981,
Edward Halligan, an individual, filed a petition
seeking to decertify General Truck Drivers, Office,
Food and Warehouse Local 952, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America2 as the exclusive col-
lective-bargaining representative of the sales repre-
sentatives employed by the Employer at its Ana-
heim, California, facility. On October 29, 1981, the
Regional Director for Region 21 administratively
dismissed the petition in Case 21-RD-1825, involv-
ing the San Diego facility, and on December 7,
1981, the Regional Director for Region 21 adminis-
tratively dismissed the petition in Case 21-RD-
1826, involving the Anaheim facility. The Regional
Director found that the units in which decertifica-
tion elections were sought were inappropriate be-
cause they were not coextensive with the recog-
nized multiemployer unit, which included all of the
salesmen employed by the Employer at its four
facilities. Thereafter, in accordance with the Na-
tional Labor Relations Board Rules and Regula-
tions, Series 8, as amended, the Petitioners filed
timely requests for review of the Regional Direc-
tor's dimissals of the petitions, contending, inter
alia, that factual issues existed which could best be
resolved upon the basis of a record developed at a
hearing.
Herein called Teamsters Local 683. The name of Teamsters Local
683 appears as amended at the hearing.
I Herein called Teamsters Local 952.
265 NLRB No. 94
The Board concluded that the requests for
review raised substantial and material issues which
could best be resolved upon the basis of record tes-
timony and, accordingly, on March 5, 1982, re-
versed the Regional Director's dismissal of the pe-
titions, reinstated the petitions, and directed that a
hearing be held on the issues raised. The hearing
was held on April 6, 1982, before Hearing Officer
Michael A. De Grace. Following the close of the
hearing, and pursuant to Section 102.67 of the
Board's Rules and Regulations, the Regional Direc-
tor transferred this proceeding to the Board for de-
cision. Thereafter, the Petitioners, Teamsters Local
683, and Teamsters Local 952 filed briefs.
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 reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in this proceeding, the
Board finds:
1. The Employer, a wholesale liquor distributor,
is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and it will effectu-
ate the purposes of the Act to assert jurisdiction
herein.
2. Teamsters Local 683 and Teamsters Local 952
are labor organizations within the meaning of Sec-
tion 2(5) of the Act.
3. The petitions before us raise no question af-
fecting commerce concerning the representation of
certain employees of the Employer, within the
meaning of Sections 9(c)(1) and 2(6) and (7) of the
Act, for the following reasons:
A. The Positions of the Parties
The Petitioners seek decertification elections
among the salesmen at two of the Employer's four
facilities. There are about 12 salesmen at the Em-
ployer's San Diego facility and about 20 salesmen
at the Employer's Anaheim facility. Between Sep-
tember 1, 1977, and August 31, 1981, the salesmen
at all four of the Employer's facilities were cov-
ered by a collective-bargaining agreement negotiat-
ed by a multiemployer association of eight liquor
wholesalers, including the Employer, with a group
of eight Teamsters locals, including Teamsters
Local 683 and Teamsters Local 952. This contract
covered a unit of all salesmen employed by the
eight members of the multiemployer association.
There were about 300 salesmen in this multiem-
ployer unit. The Petitioners contend that, as of Oc-
tober 2 and October 9, 1981, when these petitions
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were filed, the multiemployer bargaining unit had
been effectively fragmented and destroyed because
separate bargaining had occurred between the
unions and a group of four employers not including
the Employer. The Petitioners argue that, in the
absence of a recognized multiemployer unit, each
of the Employer's facilities constitutes a presump-
tively appropriate single location unit and therefore
elections should be directed. Teamsters Local 683
and Teamsters Local 952 contend that at all times
relevant to the petitions herein the Employer was a
member of a multiemployer association: first, the
eight-employer association and, then, a four-em-
ployer association. Teamsters Local 683 and Team-
sters Local 952 also argue that, even if the mul-
tiemployer unit had been fragmented and de-
stroyed, single location units would not be appro-
priate in light of the Employer's history of recog-
nizing and bargaining with the unions on a com-
panywide multilocation basis as to its salesmen.
Therefore, Teamsters Local 683 and Teamsters
Local 952 urge that the petitions be dismissed since
the units sought are not coextensive with the rec-
ognized unit. The Employer has taken no position
except to agree with the other parties that, regard-
less of the scope of the unit found to be appropri-
ate, a unit of salesmen is an appropriate unit.
B. The Facts as to the Multiemployer Unit
Wine and Spirits Wholesalers of Southern Cali-
fornia, the multiemployer association to which the
Employer belonged until the end of September
1981, has bargained on behalf of its eight members
for at least 18 years. Its last contract covering the
salesmen was due to expire on August 31, 1981. In
June 1981, attorney Neil Papiano informed the
Teamsters locals which were parties to this con-
tract that he would be representing four of the
eight employers in the upcoming negotiations; the
Employer was one of the four specified employers
Papiano stated he would be representing. The par-
ties stipulated that Papiano's notice was not a with-
drawal by the four employers from the multiem-
ployer association, but rather was merely notifica-
tion that Papiano would be the spokesman for
those four employers during the negotiations. The
record reveals that Sidney Korshak, the labor at-
torney regularly employed by Wine and Spirits
Wholesalers of Southern California, was the
spokesman for the association during the negotia-
tions and that all eight employer-members of the
association contributed their regular share of Kor-
shak's fee.
The negotiations for a new contract apparently
began in August 1981. The parties stipulated that,
sometime before September 30, 1981, Papiano com-
municated an offer to the Teamsters locals on
behalf of all eight employer-members of the associ-
ation, which was voted on and rejected by the
salesmen employed by all eight employers. The
parties also stipulated that, on September 30, 1981,
representatives of all eight employers met with the
Teamsters locals in negotiations; however, on Oc-
tober 1, 1981, Korshak met with the Teamsters
locals along with a Federal mediator and Ernest
Wenberg, executive vice president of Wine and
Spirits Wholesalers of Southern California, but
without Papiano or any official of the four employ-
ers he represented in attendance. At this meeting
on October 1, 1981, Korshak made a verbal final
offer to the Teamsters locals on behalf of Wine and
Spirits Wholesalers of Southern California. Wen-
berg testified that, after the verbal final offer had
been made, he contacted all eight employer-mem-
bers of the association to notify them of the offer
and was informed by the four employers represent-
ed by Papiano, including the Employer herein, that
the offer was not acceptable to them. Wenberg in-
formed the Teamsters locals of this fact when he
met with them to work out the written version of
Korshak's final offer, which the parties stipulated
was presented to the Teamsters locals on October
2, 1981.3 The written document embodying Kor-
shak's final offer, dated October 2, 1981, states that
it is made on behalf of four specifically named em-
ployer-members of Wine and Spirits Wholesalers of
Southern California, omitting the four employers
represented by Papiano. The parties stipulated that
Korshak's final offer was voted on and ratified by
the salesmen employed by all eight employers on
October 4, 1981.
The parties stipulated further that the following
events occurred. On October 5, 1981, Papiano noti-
fied the Teamsters locals that Korshak's final offer
was not made on behalf of the four employers rep-
resented by Papiano and therefore was not binding
on those four employers despite the ratification. In
response, on October 5, 1981, the Teamsters locals
filed unfair labor practice charges against the four
employers represented by Papiano and also began a
strike against NDC Distributors, Inc., one of the
four employers represented by Papiano. On Octo-
ber 6, 1981, the other three employers represented
by Papiano, including the Employer herein, locked
out all of their salesmen. 4 On October 14, 1981, Pa-
piano began negotiating with the Teamsters locals
on behalf of these four employers. On October 19,
1981, Papiano made a final offer on behalf of these
four employers, identified as Independent Liquor
s The petition in Case 21-RD-1825 was filed on this same date.
4 The petition in Case 21-RD-1826 was filed 3 days later, on October
9, 1981.
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YOUNG'S MARKET COMPANY
Wholesalers of Southern California. On October
20, 1981, Papiano's final offer was voted on and
ratified by the salesmen employed by these four
employers, including the Employer herein. The
Employer's salesmen at all four of its facilities are
currently covered by this contract, which is effec-
tive from September 1, 1981, through August 31,
1983.
C. Conclusions
The Petitioners request that we decertify part of
an existing unit. The Board will not normally
direct a decertification election in a unit not coex-
tensive with the existing unit. 5 In this case, it is un-
disputed that the recognized unit, until at least Sep-
tember 30, 1981, was a unit of salesmen employed
by eight employers, including all of the salesmen
employed at the Employer's four facilities. Howev-
er, the Petitioners contend that, as of October 2
and 9, 1981, when their petitions were filed, the ex-
isting multiemployer unit had been fragmented and
destroyed, thus rendering single location units ap-
propriate.
In Retail Associates, Inc.," the Board set forth its
standards for allowing withdrawals from multiem-
ployer bargaining units. The Board stated that,
after actual negotiations based on the existing mul-
tiemployer unit had begun, it would not permit an
abandonment of this unit absent mutual consent or
unusual circumstances.7 Here, it is undisputed that
no employer attempted to withdraw from the mul-
tiemployer association until long after actual nego-
tiations on a multiemployer basis had begun.
Rather, the four employers represented by Papiano
participated actively in the negotiations as part of
the multiemployer association right up until Octo-
ber 1, 1981, the day Korshak presented a final offer
which was acceptable to the unions. Papiano had
been present during all the negotiations through
September 30, 1981, and had even presented a final
offer on behalf of all eight employers which was
rejected by the unions sometime before September
30, 1981. Therefore, any attempts to withdraw
from the multiemployer association after Septem-
ber 30, 1981, would have had to be made either by
mutual consent or as a result of unusual circum-
stances in order to have been effective under Retail
Associates
It is clear that the unions did not consent to the
withdrawal of the four employers represented by
Papiano until October 14, 1981, when they began
negotiations with Papiano for a separate contract
a See Campbell Soup Company, II11 NLRB 234 (1955). See also Bell &
Howll Airline Service Company, 185 NLRB 67 (1970).
" 120 NLRB 388 (1958).
7 120 NLRB at 395.
covering those four employers. Thus, although
Wenberg notified the Teamsters locals by October
2, 1981, that the four employers represented by Pa-
piano did not find Korshak's final offer acceptable,
the Teamsters locals still presented Korshak's final
offer to the salesmen employed by all eight em-
ployers for ratification on October 4, 1981. Even
after Papiano notified the Teamsters locals directly
on October 5, 1981, that the four employers he rep-
resented did not consider this ratification to be
binding on them, the Teamsters locals did not
agree to their withdrawals from the association but
rather filed unfair labor practice charges against
the four employers and began a strike against one
of them. The unions took no other action which
would indicate consent to the withdrawals until ne-
gotiations for a separate contract covering those
four employers began on October 14, 1981. There-
fore, at the time these petitions were filed on Octo-
ber 2 and 9, 1981, the multiemployer unit had not
been abandoned by mutual consent.8
In the absence of mutual consent, the Board has
permitted employers to withdraw unilaterally from
a multiemployer unit where the union has negotiat-
ed separate, final agreements with other employers
on an individual basis after impasse has been
reached in the multiemployer bargaining. In Typo-
graphic Service Co., the Board found that the
union's conduct in negotiating such separate, final
agreements with individual employers had "effec-
tively fragmented and destroyed the integrity of
the bargaining unit and thus created the 'unusual
circumstances' authorizing unilateral unit with-
drawal by the employers."9 Although it could be
said that the multiemployer unit in this case was
fragmented when the four employers represented
by Papiano refused to be bound by Korshak's final
offer, this fragmentation was created by the at-
tempted unilateral withdrawals. Thus, it cannot be
argued that the withdrawals were justified as a re-
sponse to "unusual circumstances," since there
were no "unusual circumstances" before these four
employers attempted to withdraw from the mul-
tiemployer unit. We note further that the original
multiemployer association was not destroyed by
the attempted withdrawals. Rather, the bargaining
continued on a multiemployer basis, with the same
* While it might be inferred that the association consented to the with-
drawal of these four employers since the written final offer of the associ-
ation omitted their names from the list of employer-members. employers
attempting to perfect untimely withdrawals must secure the consent of
both the union and the multiemployer association. See Teamsters Union
Local No. 378 (Olympia Automobile Dealers Association), 243 NLRB 1086
(1979), remanded 672 F.2d 741 (9th Cir. 1982).
9 238 NLRB 1565, 1566 (1978). cited with approval in Charles D. Bon-
anno Linen Service, Inc. v N.LR.B., 630 F.2d 25 (Ist Cir. 1980), enfg.
243 NLRB 1093 (1979).
689
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attorney representing the association during negoti-
ations. Nor can Korshak's final offer be said to
have fragmented or destroyed the unit, since this
offer was made on behalf of the association. Thus,
the ratified contract was not the result of separate
negotiations with individual employers as in Typo-
graphic Service Co., supra.
Even if we were to find that the original mul-
tiemployer unit had been effectively fragmented
and destroyed by October 2, 1981, when the unions
received the association's final offer omitting the
names of the four employers represented by Pa-
piano, we would still find that the Employer herein
was part of a multiemployer unit after that date,
since the four employers represented by Papiano
consistently functioned as a new multiemployer as-
sociation immediately upon withdrawing from the
original association and continuing through the ne-
gotiations of a final contract. Thus, we note that all
four employers took the same position rejecting
Korshak's final offer when polled by Wenberg on
October 1 or 2, 1981; that Papiano reiterated their
joint rejection of the original association's contract
on October 5, 1981; that, in response to the strike
against one of the four, the remaining three em-
ployers took concerted action and locked out their
salesmen on October 6, 1981; that Papiano began
negotiations with the unions on behalf of all four
employers as a group on October 14, 1981; and
that Papiano's final offer leading to a contract was
made specifically on behalf of a new multiemployer
association.
Therefore, we conclude that at all times relevant
to the petitions herein the Employer was part of a
multiemployer unit, either the original eight-em-
ployer unit or the new four-employer unit. Accord-
ingly, we conclude that the single location units
sought are not appropriate for decertification be-
cause they are not coextensive with the recognized
multiemployer unit, and we shall dismiss the peti-
tions.
ORDER
It is hereby ordered that the petitions herein be,
and they hereby are, dismissed.
690