Saginaw Education Assn.

National Labor Relations Board - Board Decisions

Apr 19, 1990

298 N.L.R.B. 259 (N.L.R.B. 1990)

SAGINAW EDUCATION ASSN.
Saginaw Education Association and Michigan Exec-
utive Directors and Michigan Education. Asso-
ciation,'Party in Interest. Case 7-CA-29383
April 19, 1990
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND
OVIATT
On December 15, 1989, Administrative Law
Judge Wallace H. Nations issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed with
the Board his brief to the judge.
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 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Saginaw
Education Association, Saginaw, Michigan, its offi-
cers, agents, and representatives, shall take the
action set forth in the Order.
Linda Rabin, Esq., for the General Counsel.
Allen J. Kovinsky, Esq., of Southfield, Michigan, for the
Respondent.
Robert E. Day, Esq., of Detroit, Michigan, for the Charg-
ing Party.
James A. White, Esq., of Okemos, Michigan for the Party
in Interest.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge.
Based upon a charge filed June 15, 1989, by the Michi-
gan Executive Directors Association (MEDA or Charg-
ing Party), the Regional Director for Region 7 issued a
complaint on July 10, 1989, which alleges that Saginaw
Education Association (SEA or Respondent) on or about
May 26, 1989, withdrew recognition from the Charging
Party and refused thereafter to bargain with the Charg-
ing Party, in violation of Section 8(a)(1) and (5) of the
National Labor Relations Act (Act). The Respondent by
stipulations made at the hearing held herein admits the
jurisdictional allegations of the complaint.
Hearing was held in this matter in Detroit, Michigan,
on October 17, 1989. Briefs were received from the par-
ties on or about November 17, 1989. Based upon the
entire record, including may observation of the demean-
or of the witnesses, and after consideration of the briefs,
I make the following
FINDINGS OF FACT
1. JURISDICTION
259
Respondent Saginaw Education Association is a labor
organization representing public school employees in and
around Saginaw, Michigan. Party in Interest Michigan
Education Association (MEA) is a labor organization
representing public school employees throughout the
State of Michigan. It is admitted and I find that both Re-
spondent and the Party in Interest are now, and have
been at all times material to this proceeding, employers
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION INVOLVED
Charging Party Michigan Executive Directors Asso-
ciation is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts and Issues Presented
The facts in this proceeding are relatively undisputed
and most were stipulated. In 1984, the Regional Director
for Region 7 issued a Decision and Direction of Election
in Case 7-RC-16868 in which he found the SEA, a
Local Option Coordinating Council (LOCC) of the
Michigan Education Association , was a joint employer
with MEA and its various local option coordinating
councils, in respect to employees known variously as ex-
ecutive directors or Uni-Serv directors. Neither SEA nor
any other party to the 1984 representation case took ex-
ceptions to the Regional Director's decision . Pursuant to
the conduct of a secret -ballot election, the Charging
Party, Michigan Executive Directors Association,
became the certified bargaining representative of all local
option Uni-Serv directors employed by MEA and its
LOCC's.
The ultimate question for decision is whether Re-
spondent violated the Act when on about May 25, 1989,
it renounced future participation in the established joint-
employer bargaining relationship as of August 31, 1989,
and ceased recognizing Charging Party as the exclusive
representative of its bargaining unit employees . The cor-
ollary question involved herein is whether Respondent is
barred from litigating the issue of the appropriateness of
the bargaining unit as a defense for its withdrawal of rec-
ognition from MEDA.
As noted above, the parties entered into a stipulation
regarding most relevant facts. This stipulation, as modi-
fied on the record , is set out below:
MEA
SEA
Glossary of Acronyms
Michigan Education
Association
Saginaw Education
Association
EA Education Association
ESP Education Support
Personnel
298 NLRB No. 36
260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ASO Associate Staff Organization
PSA Professional Staff
Organization
USO United Staff Organization
MEDA Michigan Executive
Directors Association
SSA Service Staff Association
MESPA Michigan Education
Support Personnel Assn.
CC Coordinating Council
LOC Local Option Coalition
SOCC State Option Coordinating
Council
LOCC Local Option Coordinating
Council
ED Executive Director (Uni-
Serv Director)
MEDNA Michigan Education Data
Network Assn.
Structure of MEA
1. MEA is a labor organization that represents
Michigan teachers in collective bargaining with the
various school districts throughout the state.
2. Various support personnel, e.g., bus drivers,
cafeteria workers, etc., were formerly represented
by MESPA.
3. Since 1981-82, MEA has assumed representa-
tion functions previously performed by MESPA.
MESPA has become a part of MEA, and the sup-
port personnel thus serviced are referred to as ESP
members (educational support personnel).
4. Currently, MEA has some 82,000 teacher
members and some 15,000 ESP members.
5. MEA has numerous affiliates, known as local
education associations (local EAs), which represent
teachers and also, where they are unionized, ESP
workers.
6. SEA is one such local affiliate of MEA. It rep-
resents teachers employed by the Saginaw school
district. SEA does not represent ESP workers in
the Saginaw schools.
Development of the Uni-Serv Program
1. MEA and its parent body, the National Educa-
tion Association (NEA) developed the Uni-Serv
program in or around 1969-70.
(a) The goal was to make union representatives
more accessible to rank and file members.
(b) Under the program, positions known as
"Uni-Serv Directors" or "Executive Directors"
were created. These Executive Directors are the
bargaining unit employees at issue in this case.
SEA employed a person in the position of an ED
prior to the development of the Uni-Serv Pro-
gram, calling that person an "Executive Secre-
tary."
(c) The strategy was to have on ED available
to service every 900 rank and file members.
2. Organizationally, this was implemented by di-
viding the local education associations (EAs) into
groups called coordinating councils (CCs). The
object was to have at least 900 members (i.e. teach-
ers, ESP workers) in each coordinating council.
Local EAs which represented at least 900 members
became coordinating councils in and of themselves.
Local EAs which represented fewer than 900 mem-
bers were grouped together with other EAs so that
together they would constitute a single coordinating
council servicing at least 900 members.
3. MEA's governing body decides how to group
local EAs into coordinating councils. These group-
ings may change over time. There is 1 ED position
for each 900 members. This means that some co-
ordinating councils employ I ED, and some employ
more than 1, though the additional ED will be paid
at the coordinating council's, expense unless there
are more than 1800 members in the group.
4. At least some local EAs expressed a desire, in
the face of the Uni-Serv program's development, to
preserve some degree of local autonomy. Thus were
created the state and local options.
(a) Each coordinating council chooses whether it
wishes to be a state-option or local-option coordi-
nating council.
(b) The differences between SOCCs and
LOCCs involve the nature of the relationship be-
tween each and MEA, as well as the amount of
control that each exercises over their respective
executive directors in terms of the employment
relationship.
(c) The granting of this option prompted the
evolution of different collective-bargaining histo-
ries for the SOCC and LOCC personnel.
(d) All EDs who serve a SOCC are employed
by the MEA. All EDs who serve a LOCC are
employed jointly by the MEA and the LOCC
they serve, pursuant to the Decision of the Re-
gional Director in Case No. 7-RC-16868.
5. Since in or around 1975, most LOCCs have
been in an umbrella group or coalition known as
LOC.
6. Currently, there are 100 EDs, 71 of whom
belong to SOCCs and 29 of whom belong to
LOCCs. There are 49 SOCCs and 21 LOCCs.
Eleven LOCCs, including the SEA employ only
one ED each.
7. All SOCCs and LOCCs are asked by MEA to
sign yearly contracts with MEA in which the coun-
cils agree to follow the Uni-Serv guidelines and
MEA agrees to furnish financial and other assist-
ance to help the councils carry out their representa-
tional duties.
8. All LOCCs sign yearly rebate agreements with
the MEA, in which MEA pledges to rebate to the
LOCCs the monies they expend for wages, office
rental, equipment, and the like. These rebate agree-
ments set forth the number of EDs and support staff
persons for whom the LOCC will receive rebates.
MEA pays the EDs itself and charges the local or-
ganizations therefor.
SAGINAW EDUCATION ASSN. 261
9. Some SOCCs and LOCCs share office space
and clerical employees . That is, there are some of-
fices which house both SOCC and LOCC employ-
ees.
10. Coordinating councils are further grouped
into "zones ." Zone meetings occur periodically, and
bring together EDs of both SOCCs and LOCCs.
Collective-Bargaining History of SOCC and
LOCC Personnel
1. Since in or around 1970, EDs employed by
SOCCs have been represented, together with other
professional employees employed by MEA, by
PSA.
2. PSA has had successive collective-bargaining
agreements with MEA covering such employees.
3. EDs employed by LOCCs did not have formal
representation for collective-bargaining purposes
from 1970 until 1984. The EDs negotiated individ-
ual personal service contracts with their LOCCs.
4. Between 1970 and the issuance of the decision
and direction of election noted above in 1984, the
rebate agreements between MEA and the various
LOCCs would arrive at wage levels to be paid to
EDs by reference to the contract rates being paid to
EDs employed by SOCCs under the MEA-PSA
contracts. Where individual personal service con-
tracts set forth wages to be paid in excess of the
rates set forth in the MEA-PSA contract, the
LOCC would pay for that increment itself. Thus,
MEA would agree to rebate to the LOCCs only
those amounts that it was bound to pay to EDs
covered by the MEA-PSA contract.
5. Although EDs employed by LOCCs had no
formally recognized collective-bargaining agent,
they did, benefit from the efforts of an organization
known as MEDA.
(a) MEDA originated in or around 1967.
(b) MEDA never bargained contracts on
behalf of the EDs employed by the LOCCs.
(c) However, MEDA did occasionally litigate
"wrongful discharge" suits against LOCCs on
behalf of EDs; it intervened in arbitrations; it
threatened strikes; it collected dues through pay-
roll deductions. It engaged in these activities
prior to the 1984 decision and direction of elec-
tion resulting in MEDA's formal certification as a
bargaining agent.
6. Clerical employees employed at MEA head-
quarters and the various SOCCs are and have been
represented for bargaining purposes by ASO, for-
merly known as SSA.
7. Both PSA and ASO are constituent parts of
USO.
8. Prior to 1984, the individual personal service
contracts covering EDs employed by LOCCs were
negotiated by and between the EDs and the
LOCCs, and neither MEDA nor MEA was a party
thereto.
-However, MEA would exert some influence
over such negotiations, in that the rebate agree-
ments between MEA and the LOCCs dictated to
an extent the amounts that the LOCCs would be
willing to pay.
The 1984 decision and Direction of Election in
Case 7-RC-16868
1. The petition involved multiple parties, advanc-
ing multiple positions.
2. The principal issues for resolution were:
whether the EDs are statutory employees, or either
supervisors or managerial employees; whether a
single or joint employer relationship existed among
the LOCCs and between them and MEA; what ap-
propriate unit or units of EDs should be found.
3. Note that at the time of the 1984 hearing, the
EDs employed by the SOCCs had had a history of
bargaining through PSA. However, PSA was not a
party to the 1984 representation case.
4. Note also that in 1975, on a petition filed by
PSA seeking an election within an overall voting
group of all EDs employed by the LOCCs, the Re-
gional Director had determined at that time that
such an overall unit was not appropriate. This was
one of the issues being litigated in 1984.
5. The Regional Director's decision issued
2/29/84. In it , he found:
(a) that the EDs are statutory employees;
(Dec. p. 10)
(b) that the LOCC's and MEA constitute joint
employers of the EDs (Dec. p. 14);
(c) that the LOCCs and MEA do not form a
single employer (Dec. p. 14.);
(d) that there are several appropriate units--
one consisting of the EDs employed at the
SOCCs; one consisting of the EDs employed at
the LOCCs; one consisting of all EDs together.
(Dec. pps. 16-18).
6. The Regional Director granted a self-determi-
nation election as follows:
(a) voting group A (SOCCs) chose among pe-
titioner USO, or MEDA, or no union;
(b) voting group B (LOCCs) chose (i) whether
to be included in an overall unit with group A,
and (ii) whether to be represented by USO,
MEDA, or no union.
7. The outcome of the election was that voting
group (SOCCs) chose representation by USO; and
voting group B (LOCCs) chose representation by
MEDA in a separate unit.
8. Certification of Representative issued in favor
of USO on 4/26/84, and in favor of MEDA on
6/21/84.
9. No exceptions to the 1984 decision and direc-
tion of election were taken by any party thereto.
Events Since 1984
1. MEA has bargained with MEDA as the repre-
sentative of the EDs employed by the LOCCs.
262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. Two successive master contracts were negoti-
ated prior to SEA's withdrawal of recognition from
MEDA, one for 1984-1986, and a second for 1986-
1989.
3. Individual personal service contracts are still
negotiated for the EDs.
(a) The terms thereof must not conflict with
the provisions of the master agreement.
(b) The individual contracts must be approved
by, and executed by, MEDA and MEA as addi-
tional parties.
4. The grievance procedure outlined in the
master contracts includes involvement by MEDA
and MEA officials at stages of the procedure. Vio-
lations of the individual contracts are grievable
under the procedures provided in the master agree-
ment.
5. The rebate agreements between MEA and the
LOCCs have used the MEDA contract rate as the
reference point which dictates the amounts which
MEA will rebate to the LOCCs for the wages of
the EDs.
6. The master agreement of 1986-1989 was
scheduled by its terms to expire 8/31/89.
7. The first negotiation session for a successor
agreement was scheduled for 6/1/89 and took place
on that date.
8. By letter dated 5/26/89, SEA notified MEDA
and its employee, Richard Long, an ED, that it no
longer would consider itself part of the joint em-
ployer grouping and would no longer recognize
MEDA as the bargaining agent for its ED as of the
termination of the master agreement 8/31/89.
9. SEA is the sole local association and sole
LOCC to thus repudiate the bargaining and joint
employer relationships.
10. MEDA has not consented to the withdrawal
of SEA from the joint employer group nor to its re-
pudiation of the bargaining relationship with
MEDA.
11. The remainder of the LOCCs still belong to
the joint employer group and have just finalized a
new 3-year master agreement with MEDA due to
expire in 1992.
In addition to the foregoing stipulation, the General
Counsel introduced the testimony of two witnesses,
Warren Culver, associate executive director, labor rela-
tions, Michigan Education Data Network Association
(MEDNA) and Thomas P. Fette, president of the Michi-
gan Executive Directors Association (MEDA). Culver's
duties include bargaining with MEDA on behalf of
MEA, of which MEDNA is a subsidiary. He testified
that since the inception of the Uni-Serv program, the
guidelines for the number of members an ED is supposed
to service has grown from 900 to about 1000 to 1100. In
the event the group serviced by an ED dropped substan-
tially below 900, MEA would reorganize and add units
of members to the ED's group. This has happened, for
example, in the Bay City, MI LOCC where the member-
ship dropped to about 500 and MEA added several other
local school areas to raise the membership served to a
number closer to 900. There has also been an instance
where one ED served two LOCCs.
In the Bay City situation mentioned above, the in-
volved LOCC wanted to have its ED serve only its
members, but the MEA would not allow it to do so and
still receive the rebate which covered all or most of the
ED's compensation. Under the new Master Agreement
with the LOCCs,1 but not the two previous ones, an
LOCC seeking a new ED would have to offer inter-
views to current Michigan EDs based on seniority. How-
ever, they are under no obligation to hire from this se-
niority list. LOCCs are supposed to follow MEA's af-
firmative action guidelines in hiring EDs, but in practice
are granted waivers if requested.
Some differences in the relationship between an ED
and the employing LOCC which have occurred since
1984 are the involvement of MEA and MEDA in the
discipline of an ED and the necessity to have an ED's
contract with a LOCC approved by MEDA and MEA.
An ED's contract with a LOCC cannot abrogate any
provisions contained in the Master Agreement between
MEDA, MEA, and the LOCCs.
Fette, in his position as president of MEDA, was di-
rectly involved in the negotiations over the contract of
SEA's current ED, Richard Long. Under the terms of
the Master Agreement, there is a period of time in which
MEA and MEDA can become involved in negotiations
between an ED and a LOCC if agreement is not reached
within a given period of time . In the particular case of
Long, there was a dispute over transportation expenses
in his contract and a tentative agreement was reached,
but the executive board of MEDA rejected the agree-
ment.
Respondent introduced over the objection of General
Counsel a substantial amount of testimony of Brent Par-
sons, president of SEA. The testimony was allowed to
determine if any substantial change in factual circum-
stances had occurred since the time of taking evidence
considered by the Regional Director when he issued his
Decision and Direction of Election in 1984 . On cross-
examination, Parsons admitted that no significant
changes had occurred since 1984 in the relationship be-
tween MEA, SEA, SEA's executive director, and other
Michigan LOCCs, which would be relevant to a deter-
mination of joint employer status of an ED by MEA and
the LOCCs. Given this admission , I believe that the ob-
jection by General Counsel to this evidence is meritori-
ous and such evidence is otherwise irrelevant to a proper
resolution of this proceeding.
B. Analysis and Conclusions with Respect to the Issues
Respondent, other LOCCs, and MEA participated in
the representation case in Case 7-RC-16868, wherein the
Regional Director determined that MEA and the
LOCCs, including Respondent, were joint employers of
their employees in an appropriate unit for collective bar-
1 SEA is not a party to the new agreement because of its purported
withdrawal from the ,joint employer relationship. The agreement notes
SEA's withdrawal, pending the outcome of this proceeding.
SAGINAW EDUCATION ASSN. 263
gaining within the meaning of Section 9 (b) of the Act
described as follows:
All local option Uni-Serv directors employed by
the Michigan Education Association and its Local
Option Coordinating Councils; but excluding office
clerical employees, guards, supervisors as defined in
the Act, and all other employees.
Respondent knowingly did not appeal any evidentiary
rulings made in the representation case nor did it appeal
the decision of the Regional Director. Instead, it acceded
to the rulings and the decision and proceeded to an elec-
tion. Pursuant to this election, MEDA became the certi-
fied bargaining representative of all local option Uni-
Serv directors employed by MEA and its LOCCs. Re-
spondent thereafter bargained with MEDA as a joint em-
ployer of its executive director with MEA over the
terms and conditions of employment of the ED, reaching
two successive contracts.2 With respect to the local con-
tract between it and its current ED, Long, it bargained
with representatives of MEDA and MEA.
Respondent's decision to withdraw from the joint em-
ployer relationship and concurrent, refusal to recognize
and bargain with MEDA as the collective-bargaining
representative of its ED is based not on any factual
change in circumstances, but rather on the Board's deci-
sion in Wisconsin Education Assn., 292 NLRB 702 (1989).
In this case , based on similar facts to those existing in the
1984 Michigan representation proceeding, the Board re-
versed a Regional Director's decision that Wisconsin's
version of MEA and its LOCCs were joint employers of
the EDs and found that a unit composed of the EDs em-
ployed by the LOCCs was not an appropriate unit. I be-
lieve Respondent's reliance on this case is misplaced and
its actions complained of herein therefore unlawful.
Rule 102.67(f) of the Board's Rules and Regulations
states:
The parties may, at any time, waive their right to
request review. Failure to request review shall pre-
clude such parties from relitigating in any related
subsequent unfair labor practice proceeding, any
issue which was or could have been raised in a rep-
resentation proceeding.
It is well settled that in the absence of newly discov-
ered and previously unavailable evidence or special cir-
cumstances, a respondent in a proceeding alleging a vio-
lation of Section 8(a)(5) is not entitled to relitigate issues
that were or could have been litigated in a prior repre-
sentation proceeding. See Pittsburgh Plate Glass Co. v.
NLRB, 313 U.S. 146, 162 (1941); Secs. 102.67(f) and
102.63(c) of the Board's Rules and Regulations. All
issues raised by Respondent were or could have been liti-
gated in the prior representation proceeding. The Re-
spondent does not offer to adduce at a hearing any
newly discovered and previously unavailabLe evidence.
It does contend that based on the Board's decision in
2 SEA did not directly participate in the bargaining sessions Its inter-
ests were represented by three persons appointed by the involved
LOCCs, who joined the MEA negotiating team.
Wisconsin Education Assn., supra, the certification of the
bargaining unit involved herein was erroneous and con-
trary to the precedent set in that case. I disagree.
Upon the filing of a representation petition, the Board
is not required to find the single most "appropriate" unit,
but simply to fashion an appropriate unit. NLRA Section
9(b); e.g., Morand Bros. Beverage Co., 91 NLRB 409
(1950), enfd. 190 F.2d 576 (7th Cir. 1951). The latitude in
this area accorded by the statute to Regional Directors
means that even given substantially similar facts, reasona-
ble minds may arrive at discrepant unit determinations.
Although the Regional Director in the 1984 decision
came to a conclusion different from the Board's decision
in the Wisconsin case, both the'Regional Director and the
Board analyzed the issues using the same analytical
framework. The Wisconsin case does not represent any
departure from the Board's historic approach to commu-
nity of interest and joint employer, questions. Community
of interest factors remain, inter alia, degree of functional
integration, commonality of supervision, nature of em-
ployee skills and duties, interchange and contact among
employees, location of worksites, bargaining history, and
similarity in general working conditions and benefits.
Whether a joint employer connection will be found is
still dependent upon evidence of shared control over unit
employees. The Wisconsin case neither states nor implies
any modification of precedent in these regards.
The Regional Director, on the facts before him in
1984, saw one particular appropriate unit; in the Wiscon-
sin case, the Board saw another. Significantly, had the
Respondent appealed the Regional Director's decision in
1984, it would have received the same analytical review
of that decision as the Board gave to the Regional Direc-
tor's decision in the Wisconsin case. It is certainly possi-
ble that the Board, had it been asked to review the 1984
decision, would have come to the, same conclusion that it
reached in the Wisconsin case. The Board has announced
no change in the law or its approach to joint employer
questions in the Wisconsin case which would indicate
that it would have ruled differently in 1984, if asked to
do so. Therefore, I find no special circumstances exist in
this case, only Respondent's belated desire to have a
review made of the Regional Director's 1984 decision.
There is no claim that the disputed unit finding vio-
lates any express statutory provision or Board policy.
Further, there is no support for; the proposition that 5
years of bargaining history may, be erased merely be-
cause the unit may be different from one which the
Board itself would have fashioned had the Board decid-
ed the case ab initio. Parties execute, and a Regional Di-
rector will approve, stipulated election agreements con-
taining unit descriptions at variance from what the Re-
gional Director or Board may have found. Such a policy
clearly promotes efficiencies in the election process.
Moreover, the more important policies of promoting in-
dustrial stability and finality of judgments would be
furthered by not allowing Respondent to in effect reliti-
gate the 1984 decision.
On the other hand, there is no showing that any salu-
tary result would obtain by allowing such relitigation.
Respondent has not shown that it is placed some worse
264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
competitive position vis-a-vis Wisconsin LOCCs. It is a
union and all that it is required to do under the current
state of affairs is to deal with another union as the repre-
sentative of its executive director, and then only in limit-
ed circumstances. To allow Respondent to continue its
course of conduct would erase 5 years of bargaining his-
tory, deprive at least Respondent's executive director of
wanted and certified representation, throw into doubt the
status of MEDA as the certified representative of all of
the other involved executive directors, and might well
ultimately deprive them of wanted representation. Such a
result surely does not further any policy of the Act of
which I am aware.
Respondent was accorded full due process rights in
1984. For whatever reason, it chose not to except to the
Regional Director's decision. It may not now tardily
raise the same issues as those litigated to completion in
1984. This principle of collateral estoppel, codified in
Section 102.67(0 of the Board's Rules and Regulations, is
a necessary cornerstone of practical jurisprudence. Upon
it rests the Board's ability to protect established bargain-
ing relationships from constant attack. I would again
note that there has been no real change in Board law
since 1984 as it affects this case. Had Respondent chosen
to take advantage of its appeal rights in 1984, it may well
have obtained then a result similar to the Board's ruling
in the Wisconsin case. To wait until substantial reliance
has been placed upon the 1984 decision by all affected
parties before seeking an appeal goes completely against
the letter and spirit of the Board's Rules.
Finally, the Respondent argued at the hearing, though
not on brief, that multiemployer principles apply in this
proceeding. Multiemployer bargaining arises where em-
ployers voluntarily enter into negotiations on a group
basis. These consensual arrangements, at prescribed
times, may be unilaterally abandoned by the subject em-
ployers. A multiemployer bargaining relationship is es-
tablished through voluntary conduct and does not
depend on a finding that the group of employers consti-
tutes a single integrated enterprise, or that its constitu-
ents are alter ego's or joint employers.
The instant case does not present a multiemployer bar-
gaining situation. That the bargaining unit consists of the
employees of multiple nominally separate employers is
the result of litigation leading to a joint employer find-
ing. Because 'the scope of the unit was not created volun-
tarily, but rather by heretofore unchallenged administra-
tive fiat, the unit's scope may not be altered unilaterally
by the employer-participants. That Respondent repudiat-
ed the joint relationship prior to the beginning of bar-
gaining over a successor agreement therefore does not
cure the violation. It does not privilege unilaterally
modifying the unit any more than merely providing
notice wouldallow an employer unilaterally to exclude
certain classifications from the certified or recognized
bargaining unit.
For all the reasons set forth above, I find that Re-
spondent has not raised any issue that is properly litiga-
ble in this unfair labor practice proceeding. As Respond-
ent has admitted that it unilaterally withdrew from the
joint employer relationship and after August 31, 1989, re-
fused to recognize and bargain with MEDA as the certi-
fied collective-bargaining representative of its employee
in the appropriate unit, I find that Respondent has violat-
ed Section 8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
1. Respondent Saginaw Education Association and
Party in Interest Michigan Education Association are
employers engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. Michigan Executive Directors Association is a labor
organization within the meaning of Section 2(5) of the
Act.
3. The following employees of the Party in Interest
and its various Local Option Coordinating Councils, in-
cluding Respondent, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
All local option Uni-Serv directors employed by
the Michigan Education Association and its Local
Option Coordinating Councils; but excluding office
clerical employees, guards, supervisors as defined in
the Act, and all other employees.
4. Since June 21, 1984, Charging Party Michigan Ex-
ecutive Directors Association has been certified as the
exclusive representative, within the meaning of Section
9(a), of all of the employees in the unit described above
for the purposes of collective bargaining.
5. Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1) and
(5) of the Act by on or about August 31, 1989, with-
drawing recognition from the Charging Party and there-
after refusing to bargain in good faith with the Charging
Party as the certified collective-bargaining representative
of Respondent's employees in the appropriate unit.
6. The unfair labor practices found to have been com-
mitted are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent Saginaw Education As-
sociation has unlawfully withdrawn recognition from and
refused to bargain in good faith with the Michigan Exec-
utive Directors Association as the certified representative
of its employees in the appropriate unit, it is recommend-
ed that Respondent be ordered to cease and desist there-
from and to take certain affirmative action designed to
effectuate the policies of the Act.
It is recommended that Respondent be ordered, on re-
quest, to meet and bargain with the Charging Party as
the exclusive representative of Respondent's employees
in the unit described above with respect to rate of pay,
wages, hours of employment, and other terms and condi-
tions of employment.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed3
s If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Continued
SAGINAW EDUCATION ASSN.
ORDER
The Respondent, Saginaw Education Association,
Saginaw, Michigan, its officers, agents, and representa-
tives, shall
1. Cease and desist from
(a) Unilaterally withdrawing recognition from and re-
fusing to bargain in good faith with the Michigan Execu-
tive Directors Association as the certified exclusive rep-
resentative of Respondent's employees in the appropriate
unit.
(b) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, meet and bargain in good faith with
the Charging Party as the exclusive representative of Re-
spondent's employees in the appropriate unit with re-
spect to rate of pay, wages, hours of employment, and
other terms and conditions of employment.
(b) Post at its place of business in Saginaw, Michigan,
copies of the attached notice marked "Appendix."4
Copies of the notice, on forms provided by the Regional
Director for Region 7, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
265
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT unilaterally withdraw recognition from
and refuse to bargain in good faith with the Michigan
Executive Directors Association as the certified exclu-
sive representative of our employees in the following ap-
propriate unit:
All local option Uni-Serv directors employed by
the Michigan Education Association and its Local
Option Coordinating Councils: but excluding office
clerical employees, guards, supervisors as defined in
the Act, and all other employees.
WE WILL NOT in any like or related manner interfere
with, restrain or coerce our employees in the exercise of
rights guaranteed them by Section 7 of the Act.
WE WILL, on request, meet and bargain in good faith
with the Michigan Executive Directors Association as
the exclusive representative of our employees in the unit
set out above with respect to rate of pay, wages, hours
of employment, and other terms and conditions of em-
ployment.
SAGINAW EDUCATION ASSOCIATION