Commercial Automotive Corp.

394 DECISIONS OF NATIONAL Commercial Automotive Corporation and Chauffeurs, Teamsters and Helpers Local Union No. 391, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 11-CA-3351 January 29, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On October 18, 1967, Trial Examiner Marion C. Ladwig issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions and the General Counsel filed cross-exceptions to the Trial Examiner's Decision. 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 powers in connection with this case to a three- member panel. 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 Trial Examiner's Decision and the entire record in this case, including the exceptions, and hereby adopts the findings,' conclusions,2 and recommen- dations of the Trial Examiner, as modified below. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner as modified below and hereby orders that the Respondent, Commercial Automotive Corporation, Durham, North Carolina, its officers, agents , successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Substitute the following for paragraph 2(b) of the Trial Examiner's Recommended Order: "(b) Upon execution of the foregoing contract, give retroactive effect to the terms and conditions thereof, including but not limited to the provisions relating to wages and other employment benefits, and make whole its employees for any losses they may have suffered by reason of Respondent's failure or refusal to sign the said contract, with in- terest thereon at 6 percent per annum." LABOR RELATIONS BOARD 2. Substitute the following for the second in- dented paragraph of the Notice to All Employees: WE WILL give retroactive effect to the terms and conditions of said contract, including but not limited to the provisions relating to wages and other employment benefits, and make whole our employees for any losses they may have suffered by reason of our refusal to sign the said contract. I Assuming, arguendo, that Respondent's letter of January 9, 1967, constituted a timely, effective withdrawal from the multiemployer com- mittee, its subsequent participation in the bargaining sessions commenc- ing in May 1967, indicated a clear intent to continue in group, rather than individual collective bargaining. As multiemployer bargaining was occur- ring during those sessions with Respondent's participation , we find no merit in Respondent's claim that it was no longer a member of the mul- tiemployer unit. 2 As affirmative action to remedy Respondent's unfair labor practices and effectuate the Act's policies, we shall order Respondent forthwith to sign the agreement dated June 1, 1967, to give retroactive effect to the terms and conditions of that agreement, and to make whole its employees for any loss of wages or other employment benefits they may have suf- fered as a result of Respondent's failure or refusal to sign that agreement. See John J. Corbett Press, Inc., 163 NLRB 154. Backpay, if any, shall be computed, and shall bear interest, in accordance with the formulae set forth, respectively, in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MARION C. LADWIG, Trial Examiner: This case was tried at Raleigh, North Carolina, on September 7, 1967,1 pursuant to a charge filed on June 26 by Chauffeurs, Teamsters and Helpers Local Union No. 391, herein called the Union, and pursuant to a complaint issued Au- gust 11. The case involves the refusal of the Respondent, Commercial Automotive Corporation, herein called the Company, to include its Durham garage employees under the newly negotiated Carolina Automotive Maintenance Agreement, although the employees at the Durham and two other company garages were a part of the multiem- ployer bargaining unit. The primary issue concerns the Company's contention (in support of which it promised, but failed, to cite some authority in its brief) that in- asmuch as the Company received notice of a purported defection of union support at Durham before the ratifica- tion of the new two-State agreement, the Company's refusal to include the Durham employees did not violate Section 8(a)(5) and (1) of the National Labor Relations Act, as amended. Upon the entire record, including my observation of the demeanor of the witnesses, and after due considera- tion of the brief filed by the Company, I make the follow- ing: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED The Company is a North Carolina corporation which is engaged in the sale, maintenance, and repair of over- I All dates, unless otherwise indicated, refer to the year 1967. 169 NLRB No. 76 COMMERCIAL AUTOMOTIVE CORPORATION 395 the-road tractors at garages in Durham and other cities in North Carolina, where it annually_ receives goods and materials valued in excess of $50,000 directly from out- side the State. The Company admits, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is a labor organization within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Multiemployer Unit For years, employers performing truck maintenance in North and South Carolina have engaged in group bargain- ing with the Union and three other Teamster locals. In 1964, the employers bargained as the Carolina Main- tenance Labor Negotiating Committee. This committee and the union negotiating committee negotiated and signed a 3-year agreement (expiring May 31, 1967), called the Carolina Automotive Maintenance Agreement, which when printed provided space for the individual em- ployer and local union to sign. While reciting that each employer "recognizes the [local union] as the sole and exclusive bargaining agent for all mechanics, mechanics' helpers, garagemen , parts and stock room employees" at the particular garage , the agreement also provided that there would be joint negotiations and a multiemployer unit of employees at all the garages: Article 36 - Multi-Employer Unit The undersigned Employer agrees to be bound by all of the terms and provisions of this Agreement, and also agrees to bound by the interpretations and enforcement of the Agreement. The Employer further agrees to participate in joint negotiations of any modification or renewal of the contract and to become a part of the multi-employer unit set forth in the contract. This agreement also provided , under the grievance machinery (article 7): "The Employers and the Unions, parties to this Agreement, shall together create a Bi-State Committee to cover the States of North Carolina and South Carolina." Ignoring the facts (1) that the employers in 1964 or- ganized a committee to negotiate the agreement and that the committee chairman signed the agreement "For the Employers," (2) that the agreement specifically provided for a multiemployer unit and for multiemployer enforce- ment and bargaining, and (3) that Company Counsel John Grigsby conceded at the trial that the Durham employees had been put "under the Carolina Maintenance contract," the company brief states: "The Respondent takes the position that it is not and has not ever been a member of a multi-employer bargaining unit." This contention ap- pears to be frivolous. B. Multiemployer Bargaining in 1967 Pursuant to the contractual provision (article 36) that the employers were to "participate in joint negotiations of any ... renewal of the contract," employer and union representatives met on May 29-31 and June 2, and negotiated a renewal of the Carolina Automotive Main- tenance Agreement, for the term June 1 , 1967, through March 31, 1970. Counsel Grigsby in the first meeting identified himself as "spokesman " for the employer group , and in the third meeting , furnished the union com- mittee with a tabulation of the "Company Maintenance Employees involved in Negotiations ," listing the number of employees at each of the 13 named employers in the multiemployer unit, totaling 1,019 employees. This tabu- lation indicated that the Company had 118 employees in- volved in the negotiations , including employees in the Company's Durham garage. The evidence is undisputed that there was no mention of excluding the Durham em- ployees at any time during negotiations. The new 3-year agreement, which was ratified by the local unions on June 2 and 3 , was formally signed on July 11 by one of the employer negotiators who signed as chairman "For the Employers," and by a union negotia- tor who signed as chairman "For the Union" (referring to the four local unions). It contains the same provisions for a multiemployer unit , and for joint enforcement and negotiations . Although printed copies of the agreement had not by the time of trial been received and executed by the individual employers and local unions , the employers had already placed the contractual benefits into effect. The evidence is clear that the employers , as well as the local unions, considered themselves bound by the terms of the new agreement when duly notified of its ratifica- tion. Nevertheless, the Company refused to include the em- ployees at one of its three garages under the new agree- ment. On June 2 (4 days after the multiemployer bargain- ing began), the Company had received a letter from an at- torney, claiming that the Union no longer represented a majority of the employees at the Durham garage. On June 8 (5 days after the new agreement had been ratified), the Company wrote the Union, enclosing a copy of the June 2 claim and advising that the Company was refusing to in- clude the Durham employees in any contract until the purported representation issue was resolved. Thereafter, on June 30, an "RD" petition was filed for an election in a proposed unit limited to the employees at the one garage. The Regional Director dismissed the petition, finding that there was "no question concerning represen- tation." No appeal was taken from this dismissal, yet the Company continued its refusal to include the Durham employees under the new agreement jointly negotiated to cover all the employees in the multiemployer unit. C. _ The Company's Defenses In addition to the seemingly frivolous contention that the Company "is not and has not ever been a member of a multi-employer bargaining unit" (discussed above), the Company also contends that it effected a "timely withdrawal from the alleged multi-employer bargaining unit." The Company relies on the notice each of the em- ployers sent to the respective local unions in January that it "has not given authorization to any organization or as- sociation to represent it in the negotiations of the mechanics labor agreement." The effect of this -notice was to inform the local unions that the employers would not be bargaining through the Carolina Maintenance Labor Negotiating Committee (which was dissolved after the 1964 negotiations). However, neither the Company or any of the other employers withdrew , nor attempted to withdraw from the multiemployer unit before the joint negotiations began on May 29. In fact, the Company did not have a separate representative at the joint negotia- tions (as did most of the other employers), but was represented solely by Counsel Grigsby, who acted as "spokesman" for all the employers. Inasmuch as the em- 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployers had "indicated from the outset an intention to be bound in collective bargaining by group rather than by in- dividual action," there clearly was multiemployer bar- gaining even if the employers had not specifically delegated authority to an association to represent them in collective bargaining. The Kroger Co., 148 NLRB 569, 573. The Company further contends that it was shown at the trial that "there had been no monolithic adherence by the employers of the Carolina Automotive Association to the objective of uniformity in their past contract as a whole." In thus referring to the evidence that some of the em- ployers have negotiated supplements , or riders, to the Carolina Automotive Maintenance Agreement, the Com- pany ignores the Board's applicable ruling in the above- mentioned Kroger case (cited by the Union at the trial) that individual bargaining on limited matters is not incon- sistent with group bargaining in a multiemployer uit. The Company does not mention in its brief its conten- tion at the trial that if an employer "receives notice, as we did, after the expiration date of the contract and before a new one has been agreed upon and executed , even though it is multi-employer negotiations, the employer under the Act commits an unfair labor practice then to go ahead and sign a contract over the objections of the members," and that "All we have done is to advise the union that we have been put on notice, and in my opinion we are committing an unfair labor practice if we sign the contract down here for Durham." To the contrary , of course , the Company would not be permitted to withdraw from the multiem- ployer unit after negotiations began, except with union consent (not obtained here), Sheridan Creations, Inc., 148 NLRB 1503, 1505 , enfd. 357 F.2d 245 (C.A. 2), cert. denied 385 U.S. 1005 , and certainly would not be per- mitted to withdraw only one of its three garages from the multiemployer unit while leaving the other two garages in the unit, Pacific Coast Association of Pulp and Paper Manufacturers, 163 NLRB 892, 898. The Company contentions are clearly unfounded. RECOMMENDED ORDER Respondent, Commercial Automotive Corporation, its officers, agents, successors, and assigns, shall: 1 . Cease and desist from: (a) Refusing to sign the Carolina Automotive Main- tenance Agreement, dated June 1, 1967, covering all mechanics, mechanics' helpers, garagemen, parts and stockroom employees at the Company's Durham, North Carolina, garage. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Forthwith sign the Carolina Automotive Main- tenance Agreement covering employees described in paragraph 1(a) of this Recommended Order. (b) Make whole its employees for any losses they may have suffered by reason of the Respondent's refusal to sign the agreement covering such employees. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (d) Post at its garage in Durham, North Carolina, co- pies of the attached notice marked "Appendix."2 Copies of said notice, on forms provided by the Regional Director for Region 11, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by Respondent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 11, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.3 CONCLUSIONS OF LAW By refusing on June 8, 1967, and thereafter to include all mechanics, mechanics' helpers, garagemen, parts and stockroom employees at the Company's Durham garage under the 1967-1970 Carolina Automotive Maintenance Agreement, the Company has engaged in unfair labor practices affecting commerce within the meaning of Sec- tions 8(a)(5) and (1) and 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has committed cer- tain unfair labor practices, I shall recommend that it be ordered to cease and desist from such conduct and from any like or related invasion of its employees' Section 7 rights, and to take affirmative action, which I find neces- sary to remedy and to remove the effect of the unfair labor practices and to effectuate the policies of the Act. Accordingly, on the basis of the foregoing findings and conclusions, and the entire record, I recommend pursuant to Section 10(c) of the Act, issuance of the following: 2 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." 3 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within '10 days from the date of this Order, what steps Re- spondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our em- ployees that: WE WILL sign the 1967 Carolina Automotive Maintenance Agreement covering employees at our Durham garage. WE WILL make our Durham employees whole for COMMERCIAL AUTOMOTIVE CORPORATION 397 any loss of benefits caused by our refusal to sign the This notice must remain posted for 60 consecutive agreement. days from the date of posting and must not be altered, COMMERCIAL AUTOMOTIVE defaced, or covered by any other material. CORPORATION If employees have any question concerning this notice (Employer) or compliance with its provisions, they may communicate directly with the Board's Regional Office, 1624 Dated By Wachovia Building, 301 North Main Street, Winston- (Representative) (Title) Salem, North Carolina 27101, Telephone 723-2392.