Taylor Motors, Inc., et al

TAYLOR MOTORS. INC.. ET AL. Taylor Motors, Inc.,; Ruby C. Barry and Ramon J. Wyatt, d/b/a Glassburn Motors; S.J. Denham, a sole proprietorship; F.E. Peri, Inc., d/b/a Peri Volkswagen; Butler-Peri, Inc. and Neilsen Motor Co. and Marion H. Bennett, Petitioner, and Shasta Auto and Machinists Local Lodge 1397, District Lodge 190, International Association of Machinists and Aerospace Workers, AFL-CIO. Case 20-RC- 1466 April 3. 1979 DECISION ON REVIEW AND DIRECTION OF ELECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On June 6, 1978, the Regional Director for Region 20 issued her Decision and Order dismissing the peti- tion in the above-entitled proceeding, finding that the petitioned-for multiemployer unit was not appropri- ate because it was not clear that the Union and Em- ployers had established an unequivocal intention to be bound in their collective bargaining by group rather than individual action. Thereafter, in accord- ance with Section 102.67 of the National Labor Rela- tions Board Rules and Regulations, Series 8, as amended, the Employers filed a timely request for re- view alleging that the Regional Director erred in her findings. On July 5, 1978, the National Labor Rela- tions Board by telegraphic order granted the Employ- ers' request for review. Subsequently, the Employers filed a brief in support of their position. The Board has considered the entire record in light of the brief and with respect to the issues on review and makes the following findings: The Petitioner seeks to decertify the Union as the bargaining agent of the employees of the six Employ- ers involved herein. The Union has contended that the petition raises no question concerning representa- tion because the appropriate units are individual em- ployer units of the six Employers and that no mul- tiemployer unit has been established. Thus, the Union alleges that the petitioned-for multiemployer unit is not appropriate. The Regional Director, noting particularly the lack of a history of multiemployer bargaining by the Union and the Employers, con- cluded that a multiemployer unit had not been estab- lished and dismissed the petition. In determining whether or not a multiemployer unit exists, we must decide, as the Regional Director correctly stated, whether the parties have demon- strated an unequivocal intention to be bound by group action.' Thus, the ultimate question is the ac- tual intent of the parties. In this case there has been, as found by the Re- gional Director, no significant history of bargaining in the multiemployer unit proposed by the Petitioner and the Employers. In October 1977, the six Employ- ers involved herein retained the California Associ- ation of Employers, hereinafter California Associ- ation, to represent them in collective bargaining. Edward Beier, the regional manager of the California Association, thereafter represented the six Employers in negotiations with the Union.2 At one time, at least three of the six Employers herein had been members of another multiemployer association known as the Redding Automotive Services Association. However. that organization has been disbanded, and there is no contention that the California Association is a succes- sor to the other association.' Certainly, the lack of a significant history of mul- tiemployer bargaining is an important factor-fre- quently given controlling weight-militating against finding that a multiemployer unit exists.4 However. based on the following. we find in this case that the Union and the Employer have exhibited an un- equivocal intention to be bound by group bargaining. According to the testimony of Beier, all six Em- ployers met, prior to negotiations, and agreed to be bound by group decisions. They established proce- dures for group decisionmaking. At the first negotiat- ing session with the Union, the parties agreed that group bargaining would take place. Beier acknowl- edged that he informed the Union that, upon the completion of negotiations, each Employer wished to execute individual contracts. However, he further tes- tified that he made it clear to the Union that any agreement arrived at by the parties would be binding on all six Employers. 5 See, e.g.. [an Eerden Company. 154 NL.RB 496 (1965). :The California Association also represented the six Employers in nego- tiations with a Teamsters local that represented the parts employees of the six Employers. Those negotiations apparently resulted in a new contract between the Employers and the Teamsters Union. There as also some record testimony that an organization called the Redding New Car Dealers Association currently exists. However, according to Howard Taylor. the owner ofu aylor Motors, the six Employers joined the California Association in order that that Association might represent them as a group. See, e.g.. Hoisting & Prtahle Engineers Local 71. International Union of Operating Engineers. AFL ('10 (Cascade Emprlocer Association). 132 NLRB 648 (1961). 5 Unlike the Regional Director, we decline to rely on certain testimony by the Employers' representative, Beier. purportedly relating to whether the individual Employers had reserved a right to go their own way at any time, i.e., to abandon multiemployer bargaining. Obviously, such a reservation by the individual Employers would be significant evidence weighing against finding a multiemployer unit to be appropriate However, based on our re- view of the record, we must conclude that the testimon) in question is very ambiguous and cannot form the basis for any finding In our judgment, Beier's testimon) appears, more likely than not. not to refer to any reserva- tion made by the six Employers involved herein Rather, Beier's testimony (Continued) 241 NLRB No. 113 711 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Union contends that it "understood" only that the six Employers would be "dealing at one table" to negotiate their own contracts and that each Employer had retained the California Association to bargain for it. According to the Union, there was no guarantee that all Employers would agree to the same contract. However, contrary to the Union, we deem it partic- ularly significant that the Union and the Employers, during the negotiations, tentatively agreed to a mul- tiemployer recognition clause.6 The tentative agree- ment on such a clause is persuasive evidence that the Union and the Employers intended to, and did in fact, establish a multiemployer bargaining unit. Where the parties have, in effect, agreed on a mul- tiemployer bargaining unit, the lack of a significant history of multiemployer bargaining may no longer be controlling. about an employer abandoning the negotiations appears to refer to a situ- ation when an employer who is not a member of the California Association becomes involved in negotiations. Here. of course, all six Employers joined the California Association. Thus, we cannot find that Beier stated that the individual Employers reserved any right to abandon at any time the group negotiations. Further, Howard Taylor, owner of Taylor Motors. testified that each Employer was obligated to remain in the group until the negotiations were completed. 6 Though the Union and the Employers, of course, have not reached a final agreement on a new contract, they were negotiating from a document representing matters previously agreed upon. That document referred to the six Employers as "Employer" and contained a multiemployer recognition clause. Further, when the Union took strike action, it struck all six Employers at once. The Union also ac- knowledged that, when members voted on various proposals relating to the negotiations between the Union and the Employers, the employees of all six Employers voted as a group. That is, there was no attempt to poll the members by employees of specific Employers. Based on the foregoing, we find that the Union and the Employers did demonstrate an unequivocal inten- tion to be bound by group bargaining and that there- fore the employees of the six Employers constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. We shall direct an election in the following appropri- ate unit: All full-time and regular part-time journeymen and trainee mechanics, body and fender men, combination body and fender/painters, and painters employed by Taylor Motors Inc.; Ruby C. Barry and Ramon J. Wyatt, d/b/a Glassburn Motors; S. J. Denham, a sole proprietorship; F.E. Peri, Inc., d/b/a Peri Volkswagen; Butler- Peri, Inc. and Neilsen Motor Co., excluding all other employees, guards and supervisors as de- fined by the Act. [Direction of Election and Excelsior footnote omitted from publication.] 712