East Bay Chevrolet v. N.L.R.B.
| Decision Date | 22 October 1981 |
| Docket Number | Nos. 79-7267,79-7312,s. 79-7267 |
| Citation | 659 F.2d 1006 |
| Parties | 108 L.R.R.M. (BNA) 2846, 92 Lab.Cas. P 13,058 EAST BAY CHEVROLET dba Time Chevrolet, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. East Bay Automotive Council, Intervenor. EAST BAY AUTOMOTIVE COUNCIL, Cross-Petitioner, v. NATIONAL LABOR RELATIONS BOARD and East Bay Chevrolet dba Time Chevrolet, Cross-Respondents. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Mark S. Ross, Littler, Mendelson, Fastiff & Tichy, San Francisco, Cal., for East Bay Chevrolet.
David Rosenfield, Van Bourg, Allen, Weinberg & Roger, San Francisco, Cal., for East Bay Automotive.
Edward S. Dorsey, Washington, D. C., Mark S. Ross, San Francisco, Cal. (argued), for N. L. R. B.; Elliott Moore, Washington, D. C., on brief.
Petitions for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.
Before ANDERSON, NELSON, and NORRIS, Circuit Judges.
East Bay Chevrolet, the Employer, seeks review of an order of the National Labor Relations Board (the Board) which requires that any agreement reached between the Employer and the East Bay Automobile Council (the Council) shall be retroactive to July 26, 1977. The Council, on the other hand, petitions for review of the Board's order denying it costs and attorney fees. The Board has applied for the enforcement of its orders.
The Employer is an automobile dealer engaged in the selling and servicing of new and used cars. The Council is an amalgamation of four separate unions formed for the purpose of negotiating collective bargaining agreements with automobile dealerships. The four crafts that compose the Council are auto mechanics, painters, car jockeys, and new and used car sales people.
The Employer was a member of the East Bay Motor Car Dealers Association (the Association), a multi-employer group which represented its members in collective bargaining with unions. In 1972, the Association and the Council entered into a collective bargaining agreement which, for the first time, covered the four crafts under one collective bargaining agreement. When that contract expired in 1974, another collective bargaining agreement was negotiated. That contract expired on May 31, 1977.
In April of 1977, after a change in ownership, the Employer notified the Council that it was withdrawing from the Association and would, henceforth, be conducting its collective bargaining on its own behalf. The Council acquiesced in this withdrawal and proceeded to negotiate with the Employer.
At their first negotiating session on July 5, 1977, the chairman of the Council requested that the Employer sign a prepared recognition agreement which stated that the Employer acknowledged the Council and its four constituent unions "as the sole and exclusive representative of its employees in a unit appropriate for the purposes of collective bargaining." (Excerpt of Record 23). After examining the document, the attorney for the Employer made several changes, including pluralizing the words "representative" and "unit." There was no discussion about the substantive effect of these changes. The recognition agreement as modified was signed and written proposals covering the four crafts were presented by the Council. No agreement was reached, but a second meeting was scheduled.
After the July 5, 1977 meeting, the attorney for the Employer filed a petition with the Board seeking an election to decertify the Automobile Salesmens' Union as the collective bargaining representative of the sales people. The basis for his actions was his receipt of a petition signed by all the sales people stating that they did not wish to be represented by the Automobile Salesmens' Union.
At the second bargaining session on July 7, 1977, the attorney for the Employer stated that the Employer could not bargain with the Council or with the Salesmens' Union because the petition had been filed with the Board and there was independent objective evidence that the Salesmens' Union did not represent the sales people. The Employer stated that it would continue to bargain as to the three other crafts. The Council and the representatives of the other Unions objected to this arrangement and the negotiations ended. Unfair labor practice charges were subsequently filed against the Employer.
In the meantime, the members of the Council struck the various automobile dealers in the Association as well as the Employer. On July 20, 1977, the Council ended its strike against the Association members when a new collective bargaining agreement was reached.
On July 26, 1977, the Employer and the Council agreed upon a "stop-gap" resolution to their dispute. The Employer entered into a collective bargaining agreement with the Council which was limited to the mechanics, painters, and car jockeys. In addition, a reservation agreement was executed. It provided that the collective bargaining agreement covering the three other crafts was without prejudice to the dispute concerning the representative status of the Salesmens' Union.
In the subsequent unfair labor practice proceedings, the Board ruled that the Employer had violated Sections 8(a)(5) and (1) of the National Labor Relations Act (the Act), 29 U.S.C. §§ 158(a)(5) and (1), "by refusing to continue bargaining with the Council on a single-employer basis for a combined unit of its shop (auto mechanics, painters, and car jockeys) and sales employees. The Employer was ordered to immediately recognize and bargain with the Council in the four-craft unit. Further, the Board adopted the recommendation of the administrative law judge (the ALJ) and ordered that any contract reached between the Employer and the Council, "including monetary benefits to be derived therefrom, ... be retroactive to July 26, 1977, the date the Respondent (the Employer) entered into the single three-craft contract and the reservation agreement." (Excerpt of Record 10). The Board also adopted the ALJ's recommendation and denied the Council's request for costs and attorney fees.
In its petition for review of the Board's decision, the Employer does not challenge the Board's unfair labor practice determinations, nor does it contest the propriety of the Board's order to recognize and bargain with the Council in the four-craft unit. The Employer's sole objection concerns the Board's order requiring any contract agreed upon by the parties to be retroactive to July 26, 1977. The Employer principally contends that the Board's order impermissibly establishes a substantive contract term and therefore should not be enforced. We believe the Employer's objection is well taken.
The obligation to bargain collectively "does not compel either party to agree to a proposal or require the making of a concession." 29 U.S.C. § 158(d); NLRB v. Tomco Communications, Inc., 567 F.2d 871, 884 (9th Cir. 1978). This provision in our labor laws is based upon the basic principle "that the National Labor Relations Act is grounded on the premise of freedom of contract." H. K. Porter Co. v. NLRB, 397 U.S. 99, 107, 90 S.Ct. 821, 825, 25 L.Ed.2d 146 (1970), quoting United Steelworkers v. NLRB, 389 F.2d 295, 300 (D.C.Cir.1967).
"While the parties' freedom of contract is not absolute under the Act, allowing the Board to compel agreement when the parties themselves are unable to agree would violate the fundamental premise on which the Act is based private bargaining under governmental supervision of the procedure alone, without any official compulsion over the actual terms of the contract." (footnote omitted)
H. K. Porter, 397 U.S. at 108, 90 S.Ct. at 826. Therefore, the Board may not prescribe the substantive terms of a collective bargaining agreement, either directly or indirectly. See H. K. Porter, 397 U.S. at 106, 90 S.Ct. at 825; NLRB v. Tomco, 567 F.2d at 884.
In a case similar to the present, the Board recognized its limitations and refused a request that certain contract provisions be made retroactive. In Trustees of Boston University, 228 N.L.R.B. 1008 (1977), enforced, 575 F.2d 301 (1st Cir. 1978), vacated on other grounds, 445 U.S. 912, 100 S.Ct. 1271, 63 L.Ed.2d 597 (1980), the Trustees were found to have violated section 8(a)(5) of the Act by its refusal to bargain with the union. The union requested that the Board, in addition to the usual bargaining order, issue an order making all contract provisions involving salaries or fringe benefits retroactive because of the employer's frivolous objections and refusal to bargain. The Board declined to grant such extraordinary relief, stating that:
Id. at 1010. Thus, in Trustees, the Board acknowledged that the effective date of a collective bargaining agreement is a substantive provision and that it could not compel parties to agree to such a provision.
Here, the Board has ignored its holding in Trustees and the principles set forth in cases such as H. K. Porter and Tomco. The Board has ordered the Employer to recognize and bargain with the Council in the four-craft unit and "if an understanding is reached, embody such agreement in a signed, written contract which shall be retroactive in all respects to July 26, 1977." This order does precisely what the Board acknowledged it had no authority to do it prescribes a substantive provision, the effective date of the contract, in a collective bargaining agreement.
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