Towne Ford Sales

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