Uaw Chrysler Skill Development And Training Program, Chrysler Corp. International Union, United Automobile, Aerospace And Agricultural Implement Workers Of America (Uaw)

UAW CHRYSLER TRAINING PROGRAM UAW Chrysler Skill Development and Training Pro gram, Chrysler Corporation, International Union, United Automobile, Aerospace and Agri cultural Implement Workers of America (UAW) and UAW Staff Council, Petitioner Case 7- RC-18465 September 30 1988 DECISION ON REVIEW AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On February 4 1988 pursuant to the authority granted it under Section 3(b) of the National Labor Relations Act a three member panel granted review of the Decision and Direction of Election issued by the Regional Director for Region 7 The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has reviewed the record in light of the exceptions and briefs and has decided to vacate the election' and to dismiss the petition without prejudice Following a hearing before a hearing officer the Regional Director issued a decision on December 15 1987 finding among other things that the International Union United Automobile Aero space and Agricultural Implement Workers of America (UAW) Chrysler Corporation (Chrysler) and the UAW Chrysler Skill Development and Training Program (Program) are the joint employ ers of certain UAW designated special assignment employees working at program facilities whom the Petitioner seeks to represent 2 The Program is a separately incorporated non profit Michigan corporation funded by contribu tions from Chrysler Its purpose is to retrain laid off and otherwise displaced Chrysler employees for new jobs It was established in October 1985 as a result of commitments by UAW and Chrysler during the negotiation of their 1985-1988 collec tive bargaining agreement and is overseen by an executive board for joint activities and a joint ac r The election was conducted as scheduled on February 5 1988 in a unit described as All UAW designated employees engaged in providing training sere ices to displaced Chrysler employees employed by the Employers at any of the facilities ofthe UAW Chrysler Skill Development Pro gram but excluding UAW international representatives and coordi nators office clerical employees confidential employees managerial employees and guards and supervisors as defined in the Act The single ballot cast in the election was impounded 2 The Regional Director also found that the UAW GM Human Re sources Center General Motors Corporation (GM) and UAW were joint employers The UAW GM Human Resources Center was established in 1982 in negotiations for a collective bargaining agreement between UAW and GM and is organized in a manner nearly identical to the Program The petition to represent special assignment employees at the Center was dismissed based on an inadequate showing of interest 311 tivities board both of which were established for this purpose by the 1985-1988 agreement The joint boards are composed of equal numbers of Chrysler and UAW representatives The Program itself has a mixed composition board of directors as well 3 The main program facility is located in Detroit and a satellite facility is maintained in Indianapolis The Detroit facility is headed by two codirectors one each from Chrysler and UAW UAW appoints three coordinators and nine International represent atives to the facility and Chrysler appoints an equal number of persons from its Human Relations Department to the facility The Indianapolis facility is set up in similar fashion and staffed by equal numbers of UAW and Chrysler personnel UAW and Chrysler pay their respective employees at the facilities and are reimbursed by the Program The persons assigned to the Program by UAW and by Chrysler are assigned in equal numbers to a com mittee responsible for developing a particular pro gram (e g tuition assistance preretirement coup seling alcohol and drug abuse and child care etc) Once formulated the actual servicing of the pro gram is usually done through a contract with an outside concern The nonsupervisory UAW coordinators and the UAW International representatives are employees of UAW and are currently represented for collec tive bargaining purposes by the Petitioner 4 UAW also has appointed three individuals to the program facilities to work in the displaced worker program These individuals do not have Chrysler appointed counterparts It is these UAW designees whom the Petitioner seeks to represent They are Chrysler employees in units represented by UAW who are on special assignment at the Program to help train program beneficiaries While on leave from their respective Chrysler plants as UAW des ignees to the Program they are considered active Chrysler employees and continue to accrue seniori ty at their home plants Their home plants also pay them and receive reimbursement from Chrysler funds set aside for the Program The benefits the three special assignment staffers receive are paid by their home plants but are not similarly reimbursed The base wages of the special assignment staffers are higher than their plant wages-to offset the loss of overtime pay attendance bonuses and other 3 The record does not indicate the precise makeup of this board 4 The Petitioner represents these employees along with some 600 Inter national representatives and other UAW personnel in apparently a single nationwide unit Many International representatives are on leave from the auto companies including Chrysler with which UAW has collective bar gaining agreements They are considered to be UAW employees are compensated by the UAW and can be terminated by UAW The ap pointment of International representatives to the Program does not affect their unit status with the Petitioner 291 NLRB No 43 312 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD prerequisites-and their benefits differ slightly 5 The record does not make entirely clear how their compensation was determined but it appears to have been the result of discussions between UAW and Chrysler codirectors and coordinators at the Program Though not embodied in the 1985-1988 collective bargaining agreement the compensation package is set forth in a document labeled UAW Chrysler National Training Center which con tains guidelines for processing payroll and other specified benefits for employees on special assign ment to the Program 6 In finding that UAW Chrysler and the Program are joint employers the Regional Director found that the Program is a separate corporation unto itself that arose out of the collective bargaining process as an effort by [UAW and Chrysler] to share in providing certain services to employees He described the program as a unitary venture as reflected in the composition of the two joint activities boards the Program board of directors and the system of counterparts which reflects an effort to share decision making equally He noted the reimbursement system of salary compensation Chrysler s direct responsibility for payment of ben efits and UAW s determinative role in the selec tion of individuals to serve as special assignment staff people and found that the three organization ally and financially distinct employers all exercise effective control over significant aspects of the em ployment relationship so as to render them joint employers In its exceptions UAW asserts that it is the bar gaining representative of the special assignment employees and not their employer and that its par ticipation in the administration and provision of services through the appointment of its employees (coordinators and International representatives) and the designation of Chrysler employees (the special assignment employees) is the result of negotiations and a manifestation of its role as a bargaining rep resentative Further UAW urges that its designa tion of the special assignment employees is similar to its appointing individuals as trustees of benefit funds 7 5 For example the specially assigned employees receive a car allow ance while working at the Program that they do not receive when work mg at their plants Special assignment employees continue to receive their sickness and accident benefits performance bonuses cost of living allow antes and stock and profit sharing options per the 1985-1988 Chrysler UAW collective bargaining agreement directly from Chrysler 5 The compensation package is nearly identical to the compensation package for special assignment employees at the UAW GM Human Re source Center 7 UAW also contends that conflicts of interest will anse if it is deemed to be the employer of individuals it has a duty to represent Chrysler similarly asserts that it is the employer of the special assignment designees and that UAW is not their employer It argues that finding a joint employer relationship in any situation involving the joint participation and cooperation of the UAW and itself will pav[e] the way for unlimited Sec tion 8(a)(2) violations 8 As the Regional Director pointed out the stand and normally used in determining whether joint employer status exists is whether two or more em ployers exert significant control over the same em ployees-where from the evidence it can be shown that they share or co determine those matters gov erning employment 9 That standard is not readily applicable to these peculiar circumstances Contrary to the Regional Director we find that UAW is not an employer of the special assignment designees The standard as applied in prior cases presup poses that the entities alleged to be joint employers exercise control over employees terms and condi tions of employment as employers or entrepreneuri al-though not necessarily for profit-business enti ties 10 The record establishes that the role of UAW in both the establishment of the Program and in the establishment of the working conditions of the em ployees specially assigned to it has been as a collet tive bargaining representative The Program was cre ated as a mutually bargained benefit during the course of negotiations between Chrysler as an em ployer and UAW as a collective bargaining repre sentative of Chrysler employees In this regard the Program and the events that gave rise to its exist ence are the same as those giving rise to other ben efit programs such as pension trusts health and welfare funds and other types of training programs that are typically arrived at through collective bar gaining and that frequently in the case of trusts are incorporated for business purposes The com pensation package of the specially assigned em ployees was negotiated in a collective bargaining setting Significantly the special assignment em ployees have not lost their status as Chrysler em a Chrysler and UAW also contend that the 1985-1988 agreement con stitutes a bar to the petition in the instant case The Regional Director concluded that as no collective bargaining agreement to which UAW Chrysler and the Program are bound exists contract bar principles are not applicable In view of our disposition of the petition we find it un necessary to reach this issue 9 Carrier Corp v NLRB 768 F 2d 778 781 (6th Cir 1985) enfg Pace maker Driver Service 269 NLRB 971 (1984) 10 See H & W Motor Express 271 NLRB 466 (1984) (common carrier and labor broker i e supplier of terminal manager and drivers were not joint employers) Walter B Cooke Inc 262 NLRB 626 (1982) (funeral chapel owner/operator was not a joint employer with funeral trade houses to which it subcontracted work) Speedee 7 Eleven 170 NLRB 1332 (1968) (franchiser and franchisee were not joint employers) Frostco Super Save Stores 138 NLRB 125 (1962) (licensor and licensee were joint employers) UAW CHRYSLER TRAINING PROGRAM ployees as evidenced by their continued accrual of seniority at their home plants i i and Chrysler s treating them as employees assigned to a new de partment for accounting and payroll purposes Further they have not lost their status as em ployees in the UAW represented auto workers unit Their continuation in that status is evidenced by the application of the 1985-1988 Chrysler UAW collective bargaining agreement to them in nearly all respects including automatic increases griev ances payment of dues to their locals and partici pation in local union affairs It is also significant that UAW does not treat or regard them as it does its own employees the International representa tives Therefore it is clear that nothing in the Pro gram s brief history so far as these three employ i i Although no such situation has arisen the uncontradicted testimony of Program Financial Controller William A Clark is that any special as signment employee who loses seniority status at the home plant for ex ample as a result of a layoff will be dropped from the Program 313 ees are concerned has removed the Program from its moorings in the collective bargaining relation ship between UAW and Chrysler so as to trans form it into a participant in a traditional joint em ployer relationship between business enterprises- enterprises that use and direct the services of work ers but do not represent those workers in collective bargaining Having concluded for the foregoing reasons that UAW is the collective bargaining representa tive and not an employer of the special assignment employees and in view of the fact that UAW is the only named employer in the representation petition we will dismiss the petition without preju dice ORDER IT IS ORDERED that the election conducted among employees in the above described unit on February 5 1988 is vacated and the petition is dis missed 1