Metke Ford Motors, Inc.

950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nicians; but excluding office clerical employees, machine shop foreman, oiling supervisor, electrical foreman, instrumentation engineer, guards, watchmen, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] MEMBER LEEDOM took no part in the consideration of the above Sup- plemental Decision and Direction of Election. Metke Ford Motors, Inc., and Bel-Air Chevrolet Co., Inc. and Automobile Drivers and Demonstrators Local Union No. 882, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America . Case No. 19-CA-2332. June 28, 1962 DECISION AND ORDER On April 27, 1962, Trial Examiner John H. Dorsey issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner for the reasons stated below. . In reaching our conclusion that Respondent did not violate the Act as charged, we rely solely upon the fact that Respondent's withdrawal from the multiemployer bargaining unit was acquiesced in by the Union, and such conduct on the part of the Union had the effect of an implied consent to the withdrawal constituting a waiver of any un- timeliness or inadequacy of notice. The Union's acquiescence in, and consequent agreement to, Respondent's withdrawal is demonstrated by its conduct throughout the negotiations culminating in the collective-bargaining agreement reached. Thus, although Respond- ent, by reason of its prior inclusion in the associationwide unit and through membership in, and authorization of, MADA, participated in bargaining with the Union in said unit on April 3 and 4, 1961, for 137 NLRB No. 113. METKE FORD MOTORS AND BEL-AIR CHEVROLET CO. 951 a new contract to replace the expiring Association contract, it with- drew therefrom by its April 6 letter of resignation and withdrawal of bargaining authority addressed to MADA. Upon oral notice to the Union by MADA of this and several other withdrawals, the Union did not question the withdrawals but requested and received a revised list of the employers whom MADA was representing in the current bar- gaining. The list did not include the name of the Respondent and the Union raised no objections to the omission. Nor did the Union take any action inconsistent with acceptance of, and consent to, the withdrawal.' Instead, the Union proceeded to negotiate and execute an agreement with MADA which specifically provided that "The em- ployers subject to the Agreement as hereby amended are those whose names are attached hereto." Respondent's name was not among those employers on the list attached to the completed agreement. In these circumstances, we can only conclude that the Respondent's withdrawal from the multiemployer bargaining unit was an effective one because it had the mutual consent of the parties. Accordingly, Respondent did not violate Section 8(a) (5) by refusing to be bound by the collective-bargaining agreement between MADA and the Union executed by the Association on behalf of its members on September 25, 1961. [The Board dismissed the complaint.] 'Indeed, the Union had occasion to contact Respondent In early July on another matter and did not raise any question concerning the withdrawal. Respondent inquired how the Association negotiations were going and the union representative replied that they were progressing slowly, but he hoped to conclude them soon and would then be out to see Respondent. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE 1 Upon a charge filed on November 7, 1961,2 by Automobile Drivers and Demon- strators Local Union No. 882, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, the Regional Di- rector for the Nineteenth Region, on January 19, 1962, issued a complaint alleging that Bel-Air Chevrolet Co., Inc., herein called Respondent, violated Section 8(a) (5) and (1) of the National Labor Relations Act, as amended (61 Stat. 136). Re- spondent filed an answer denying violation of the Act. Upon the issues raised by the pleadings a hearing was held on February 28, 1962, at Seattle, Washington, be- fore Trial Examiner John H. Dorsey. The parties were each represented by counsel. Oral argument was waived. Respondent and the General Counsel filed briefs. Upon consideration of the entire record, the briefs of the parties, and upon my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent is a Washington corporation engaged in the sale and service of auo- mobiles with its principal place of business located in Bellevue, Washington. In the course and conduct of its business Respondent annually receives gross revenues 1 On motion of the General Counsel, made at the opening of the hearing , the complaint was dismissed as to Metke Ford Motors, Inc. 2 All dates herein are in the year 1961 unless otherwise indicated. 952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD valued in excess of $500,000 and purchases in excess of $50,000 worth of merchan- dise originating outside the State of Washington. I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. It. THE LABOR ORGANIZATION INVOLVED It is admitted and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. FACTS Metropolitan Automotive Dealers Association, herein called MADA, is a non- profit corporation which exists solely for the purposes of representing member em- ployers in matters of collective bargaining with labor organizations. The alleged appropriate collective-bargaining unit, here involved, is described in the complaint as: All retail salesmen of new or used motor vehicles employed by all employer members of the Association [MADA], including ... Respondent Bel-Air, ex- clusive of sales manager and all supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. The complaint alleges that the Union represents a majority of employees in the unit and has been, and is now, the exclusive representative of all the employees in the unit for the purposes of collective bargaining.3 A contract, for the period from May 1, 1959, to May 1, 1961, was in effect be- tween MADA, on behalf of its members whose names are set forth in a list attached to and incorporated in the contract by reference thereto, and the Union. Respondent is named in the list. It admits it was bound by the contract. On February 27, 1961, the Union, by letter, informed MADA that "we wish to open our Mutual Labor Agreement, which expires on May 1st, 1961. . . We will furnish you with a list of proposed changes within the next few days." MADA re- plied under date of March 1 giving notice of termination of the contract as of May 1 and expressing willingness to enter into negotiations. A postscript in the letter stated that MADA would "at an early date" furnish the Union "with an up-to-date list of companies represented by this Association." Three different labor organizations, including the Union, represented different units of employees of MADA members. It had been the practice that bargaining negotiations were confined to one unit at a time. On March 22 representatives of the labor organization and MADA met and decided that MADA would first bargain with the Union. On March 30 the Union submitted its proposals to MADA. Prior to April 3 MADA gave the Union a list of its members as of March 30. Respondent was named in the list. Contract negotiations began on April 3. On April 6 Respondent submitted its resignation from MADA. It had the right to do so. The MADA bylaws provide: "Any member may withdraw at any time upon serving written notice to the Executive Secretary of the Association." MADA acknowledged the resignation by letter dated April 12 and stated it would "orally so advise the several unions who represent your employees"; and, further, it suggested that Respondent send written notices of its resignation to the labor organization. In a letter to MADA, dated November 8, the Union's negotiator admits that MADA, in May, verbally notified the Union of Respondent's withdrawal. Respondent never sent the suggested written notices to the labor organization. It did file a representa- tion petition with the Board's Regional Director.4 During a negotiation meeting on May 19 the Union expressed uncertainty as to the identity of the employers being represented by MADA. This arose because of numerous resignations from MADA. It was agreed that MADA would supply a list of the names of the employers whom it was then representing. On May 25 MADA gave the Union "a list of the members of this Association [MADA] who are cur- rently being represented by this Association in negotiations with your union." Re- 3 Respondent's answer denies the appropriateness of the unit and the Union's collective- bargaining status. The record makes clear that Respondent's denials of these allegations are confined to Respondent being included In the unit after April 6, and the Union's right to represent Respondent's employees. As shown, infra, Respondent withdrew from MADA on April 6. A On May 8 five of Respondent's employees petitioned Respondent not to recognize the Union as their collective-bargaining representative. METKE FORD MOTORS AND BEL-AIR CHEVROLET CO . 953 spondent was not named in this list. The Union at the time, or thereafter during the negotiations, raised no issue relative to Respondent not being named in the list .5 There were over 20 negotiating meetings between April 3 and September 25. The negotiations culminated in the execution of a contract on September 25. Respondent did not participate directly, or indirectly, in the negotiations. The September 25 contract states: "The employers subject to the Agreement as hereby amended are those whose names are attached hereto." It is undisputed that at the time of the signing of the contract no such list was attached; but, it was agreed between the Union and MADA that MADA would mimeograph the contract and the list, attach the list, and provide the Union with copies of the complete contract e This was done within a few days. After the Union received its copies it raised no question that the list of employers was not complete. Respondent's name was not on the list. IV. THE ISSUE The ultimate issue in this case is whether the Act makes Respondent a de jure party to the collective-bargaining contract of September 25 executed by the Union and by MADA on behalf of its members. Otherwise stated, did Respondent with- draw from group bargaining "at an appropriate time"? 7 V. THE LAW The Board has enunciated the principle that: It is well established that a single employer unit becomes appropriate when the employer, at an appropriate time, manifests an intention to withdraw from group bargaining and to pursue an individual course of action with respect to its labor relations. [Greater Peoria Restaurant Association, 131 NLRB 198, 200.] However, the Board has established no guide lines as to what is "an appropriate time." It appears that the Board, in the Greater Peoria case, adopted the legal conclusion of the Trial Examiner that the factor of timeliness of withdrawal from a group bargaining unit is to be applied on an ad hoc basis, "to be determined by the peculiar circumstances of the case at hand." 8 The recent case of Indiana Limestone Com- pany, Inc., 136 NLRB 697, is in accord. VI. RESOLUTION OF THE ISSUE There are no statutory standards for withdrawal from a multibargaining group and no settled rules have been developed by the cases as to what is "an appropriate time" for an employer to withdraw from a multiemployer group. It remains a contractual substantive matter as between the parties involved, the mode and procedure to be determined by the rules and policies of the employer group; provided that, insofar as the withdrawal affects the Union's rights, it shall be reasonable and appropriate as to timing and notice under all of the circumstances. It is undisputed that: (1) Respondent withdrew from MADA on April 6. (2) On May 24 MADA gave to the Union a list of employers then being represented in the negotiations by MADA which did not include the name of Respondent. (3) On and after May 24 the Union, during the negotiations, raised no objection to Respondent's name not being included on the list. (4) Attached to the September 25 contract and made part thereof is a list of employers subject to the contract. This list does not include the name of Respondent. The Union did not contend that Respondent's name should have been on this list. (5) Respondent did not participate directly or indirectly in the 1961 negotiations between the Union and MADA. (6) After 5 The Union's chief negotiator testified that he had always taken the position that all employers party to the 1959-1961 contract who had not withdrawn from DL I)A more than 60 days before the termination of that contract would be bound by the successor contract Under cross-examination the Union's negotiator testified that the first time this contention was formally raised was in November. The blADA negotiator did not recall such a statement being made by the Union. From the record as a whole, and upon my observation of the demeanor of the witnesses, I find that the Union did not take such a position until sometime after September 25 "The Union's negotiator testified that, "The list had to be corrected . . because there had been some deletions " T See Greater Peoria Restaurant Association, 131 NLRB 198 B During the course of the hearing the General Counsel stated that he "is relying on one main case of Retail Associates, Inc " The decision of the Board in that case was vacated. See Greater Peoria case, footnote 26 of the Intermediate Report. 954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD April 6 Respondent filed with the Board a petition raising the issue of representation of its employees which manifested an intention to withdraw from group bargaining. The doctrine of equitable estoppel is universally recognized by the courts. In Casey v. Galli, 94 U.S. 673, 680, the Court stated: Parties must take the consequences of the position they assume . They are estopped to deny the reality of the state of things which they have made appear to exist, and upon which others have been led to rely. Sound ethics require that the apparent , in its effects and consequences, should be as if it were real, and the law properly so regards it. Had the Union taken the position during the negotiations that Respondent's name should have been included on the May 24 list, it may be assumed that Respondent might have conducted itself differently. The Union's failure to raise the issue during negotiations can be construed only as assent to Respondent 's withdrawal from the multiemployer unit and the doctrine of equitable estoppel applies. On the basis of the facts, the record as a whole, and my observation of the de- meanor of the witnesses , I am convinced that the Union and MADA bargained after May 24 with the understanding that MADA represented only those employers named on the May 24 list and the contract as executed on September 25 was binding only on those employers listed therein . In accord with such mutual understanding it can- not be held that Respondent is a de jure party to the September 25 contract and its refusal to comply with its terms a violation of Section 8(a)(5) of the Act. Cf. Indiana Limestone Company, Inc., 136 NLRB 697. I shall therefore recommend dismissal of the complaint in its entirety. RECOMMENDATION It is recommended that the complaint be dismissed in its entirety. Fernandes Super Markets, Inc. and Local 1325, Retail Clerks International Association, AFL-CIO. Case No. 1-CA-3601. June 28, 1962 DECISION AND ORDER On March 20, 1962, Trial Examiner Thomas S. Wilson issued his Intermediate Report in the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. There- after, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The General Counsel filed a brief in support of the Intermediate Report. The Board' has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and entire record in the case, and for the reasons set forth below has decided to dismiss the com- plaint in its entirety. Accordingly, the Board adopts the findings ' Pursuant to the provisions of Section 3(b) of the National Laobr Relations Act, the Board has delegated Its powers in connection with this case to a three -member panel [ Members Leedom , Fanning, and Brown]. 137 NLRB No. 119.