Midas Muffler Clinic, Inc.

National Labor Relations Board - Board Decisions

Jan 9, 1967

162 N.L.R.B. 775 (N.L.R.B. 1967)

MIDAS MUFFLER CLINIC, INC. 775
of its training ground for skilled technicians in this field and that it
must also lose senior people in a layoff because they have no lower
jobs into which they can bump.
As previously indicated, the history of representation of all P-20
personnel by SEA is undenied, and no claim is made by IUE for
concededly technical employees designated as testers, now in P-30.
Nor is it denied that the P-20 employees have been salaried, and the
IUE unit specifically excludes "salaried technical" employees. The
record also establishes that the P-20 employees have had a different
line of progression from that of production employees, in that the
lower graded P-20 personnel were promoted into-the higher labor
coded jobs based on experience, while production employees do not
move into. this group. Further, in case of cutbacks in personnel,
higher graded P-20 employees could bump back into lower graded
jobs.
Under all the . circumstances, we are persuaded that the P-20
employees in labor grades 10 and below as well as those in the higher
grades left in the SEA unit by the Arbitrator have been and are
properly within SEA's'certified unit and that no question concerning
representation presently exists. We shall, therefore, clarify the certi-
fication to include the P-20 employees in the SEA unit.
[The Board clarified the certification by specifically including in
the description of the appropriate unit all employees in the depart-
ment known as P-20.]
Midas Muffler Clinic , Inc., and Its Wholly -Owned Subsidiaries,
Reliable Muffler Enterprise, Inc., Chicago Heights Muffler, Inc.,
and Echo Muffler , Inc. and Transportation Service and Allied
Workers, Seafarers ' International Union of North America,
AFL-CIO, Petitioner . Case 13-RC-10896. January 9,1967
DECISION ON REVIEW AND ORDER
On July 20, 1966, the Acting Regional Director for Region 13
issued his Decision and Direction of Election in the above-entitled
proceeding, finding appropriate a unit of the employees of Midas
Muffler Clinic, Inc., and its three wholly owned subsidiaries (herein
collectively referred to as the Midas group).
Thereafter, in accordance with Section 102.67 of the National
Labor Relations Board Rules and Regulations, as amended, the
Intervenor, Production and Miscellaneous Workers Union of Chicago
and Vicinity, Chicago Truck Drivers Union of Chicago and Vicinity
162 NLRB No. 64.
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(Independent), filed with the National Labor Relations Board a
timely request for review of such Decision, alleging that the Regional
Director's findings of facts and the unit are erroneous, and that the
only appropriate unit was one including said Employer as part of a
multiemployer group that had historically negotiated with the Inter-
venor. The Petitioner filed opposition thereto. On August 16, 1966,
the Board, by telegraphic Order, granted the request for review and
stayed the conduct of the election pending review. The Intervenor
and Petitioner subsequently filed supplemental statements of position.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a three-member panel [Members
Fanning, Brown, and Zagoria].
The Board has considered the entire record in the case with respect
to the Acting Regional Director's determination under review, and
makes the following findings :
The Midas group and 10 other dealerships (independent compa-
nies) in the same area sell and install Midas Muffler products. The 10
other dealerships operate under franchise arrangements and are
herein collectively referred to as the dealer group. There are about
40 employees in the Midas group and about 40 in the dealer group.
It is undisputed that the employees of the Midas group and the
dealer group have been represented by the Intervenor since 1959; that
each of the employers has individually signed separate contracts with
the Intervenor which embodied substantially the same terms and con-
ditions of employment; 1 that all such terms were negotiated by a
single individual, Attorney David Silbert; and that the latter con-
ducted one set of negotiations with the Intervenor for the terms sub-
sequently embodied in the series of contracts hereinafter described.
Although the latest separate contracts were executed on different
dates, they all have identical substantive terms and were made effec-
tive from August 11, 1963, to August 10, 1966. The difference in exe-
cution dates is attributed to the illness of the Intervenor's representa-
tive who apparently in the past had signed the document first and
then submitted it to the employers for their signature.
The Petitioner contends that, despite the objective facts set out
above, the two employer groups did not bargain jointly. It claims in
effect that there was no advance agreement by the Midas group and
the dealer group to be "bound" by whatever Silbert consummated.
I The 1959 negotiations culminated in a 3 -year contract , as did the 1962 negotiations.
The contract , dated in August 1962, provided , inter alta, for a 44 -hour week with overtime
thereafter In 1963, some question arose as to the legality of these provisions under the
FLSA, and the entire contract was renegotiated for a 3-year term, subject to reopening for
wages in 1965 . In 1965, further negotiations were conducted pursuant to the reopening
clause and resulted in a wage increase across the board for the balance of the contract's
term.
MIDAS MUFFLER CLINIC, INC. 777
Indeed, the Petitioner suggests (as found by the Regional Director)
that the dealer group merely "accepted" what Silbert had negotiated
for the Midas group as a matter of "convenience and expediency" and
not because of any prenegotiation intent to do so.
However, there is uncontradicted evidence in the record that Sil-
bert was expressly authorized by all employers involved to negotiate
with the Intervenor on their behalf before the 1959 and 1962 negoti-
ations; and that, except for certain statements made by Shapiro (one
of the employers in the dealer group) during the hearing herein, none
of the employers involved has ever indicated that Silbert should not
continue to represent all of them.
Admittedly, in 1963 when the Intervenor sought to reopen the 1962
contract on grounds that its 44-hour week provision did not conform
with the Fair Labor Standards Act, certain employers in the dealer
group initially opposed the reopening; and Shapiro, and apparently
others of the employers in the dealer group who wanted further
information as to the applicability of the FLSA, hired Attorney
Stone to investigate the Inatter. But, although they thus obtained
independent counsel on the specific subject of the applicability of the
FLSA to their operations, the record contains no evidence that any
of them ever notified Silbert or the Intervenor of any intent to pur-
sue an individual course of bargaining and/or to seek a contract
different from that of the Midas group of employers. Indeed, the
record establishes that the employers in the dealer group affirmatively
determined to have the same contract as the Midas group, and to
continue to have Silbert negotiate such contract on their behalf, as
well as on behalf of the Midas group.2 The record further shows that
they so notified Silbert; that representatives of the two groups actu-
ally met with each other and discussed negotiation terms ; and that,
in fact, all of them subsequently accepted the results of the negotia-
tions Silbert conducted, and signed the 3-year contract bearing an
August 1966 terminal date. Further, when such contract was
reopened for wages in 1965, Silbert received specific advance author-
ity from representatives of the employers in both groups to go up to
10 cent per hour in negotiating an increase in wage rates; Silbert
actually negotiated a 7-cent per hour increase; and all employers
agreed to the increase. While, on the advent of these negotiations,
Shapiro (but no other Employer) sought to disassociate his two
dealerships from the negotiations, he also signed the contract negoti-
ated by Silbert.
a According to the testimony of some witnesses , the determination by the dealer group
on this matter was made before Silbert actually began negotiating with the Intervenor in
1962. According to others , it was not definitively made until after the negotiations had
commenced, but, nevertheless , before such negotiations had been concluded.
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In sum, the bargaining history as summarized above persuades us
that since 1959, despite some occasional initial disagreement on par-
ticular matters, the employers in both the Midas group and the
dealer group have mutually assented to bargain jointly and have in
fact continuously engaged in true multiemployer bargaining for the
employees in the classifications the Petitioner seeks to represent.
Although their association for bargaining purposes is informal in
nature, the members of the multiemployer group are clearly identi-
fiable through their continuing use of a single negotiator; the
consistent acceptance by each of these for whom Silbert acted of
substantially identical contracts containing the terms Silbert
negotiated; the undisputed evidence that a dealer group representative
and a Midas group representative were both sometimes present at the
same meetings with Silbert to discuss their interest in the terms under
negotiation; 3 and the absence of any evidence that any employer
(except Shapiro) ever advised Silbert it would not accept any con-
tract term he negotiated or that he could not speak on their behalf.4
We conclude, accordingly, that the requested unit confined to
employees of the employers comprising the Midas group is but a
segment of an established multiemployer unit and is hence an inap-
propriate unit for the purposes of collective bargaining. We shall
therefore dismiss the petition.
[The Board dismissed the petition.]
3 Cf. Wards Cove Packing Company , Inc, 160 NLRB 232.
* While, as noted above , there is some evidence that Shapiro may no longer desire to be
represented by Silbert as part of the multiemployer bargaining group , there is no indication
that any other employer in the group which has bargained jointly since 1959 to date no
longer wishes to bargain on that basis . Indeed, the position taken by employers from both
groups who appeared at the hearing, and undisputed testimony of Silbert himself, affirma-
tively points to the continuing assent and intent by all the employers who have been
historically associated in common bargaining ( with the possible exception of Shapiro), to
continue to be so associated.
Western Building Maintenance Co. and International Union, Con-
federated Industrial Workers of America
Service and Maintenance Employees Union , Local 399, Building
Service Employees International Union , AFL-CIO and Interna-
tional Union, Confederated Industrial Workers of America
and affiliated Maintenance Co.; All American Maintenance Co.,
Inc.; Allstate Building Maintenance Co.; American Building
Maintenance Co.; B & G Janitor Service ; J. E. Benton Manage-
ment Corp.; Building Service Company of Los Angeles; Cali-
fornia Building Maintenance Company; Coast Building Mainte-
nance Co .; County Building Maintenance Company, Inc.;
Esquire Building Maintenance Company ; Los Angeles Building
162 NLRB No. 73.