Winer Motors, Inc.

0O DECISIONS OF NATIONAL LABOR RELATIONS BOARD Winer Motors, Inc. and Brewery and Soft Drink Workers, Liquor Drivers and New and Used Car Workers, Local 1040, affiliated with the In- ternational Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 39-CA-59 (formerly 2-CA-16875) April 25, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge filed on November 2, 1979, by Brewery and Soft Drink Workers, Liquor Drivers and New and Used Car Workers, Local 1040, affili- ated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and duly served on Winer Motors, Inc., herein called Respondent, General Counsel of the National Labor Relations Board, by the Regional Director for Region 2, issued a complaint on November 29, 1979, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices af- fecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Na- tional Labor Relations Act, as amended. Copies of the charge and complaint and notice of hearing before an administrative law judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on October 5, 1979, following a Board election in Case 2-RC- 18277 the Union was duly certified as the exclusive collective-bargaining representative of Respond- ent's employees in the unit found appropriate;' and that, commencing on or about October 22, 1979, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collec- tively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On December 7, 1979, Respondent filed its answer to the complaint admit- ting in part, and denying in part, the allegations in the complaint. Respondent admits receipt of the charge filed by the Union on November 2, 1979, and that it meets the Board's jurisdictional stand- ards. Respondent admits the supervisory status of Harold Winer and Allan Winer. Respondent denies that the employees designated by the Regional Di- Official notice is taken of the record in the representation proceed- ing, Case 2-RC 18277, as the term "record" is defined in Secs. 102.68 and 102.6 9 (g) of the Board's Rules and Regulations, Series 8, as amended. See LIV Electrosystems. Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969), Intertype Co. v. Penello, 269 F Supp. 573 (D.C.Va. 1967);, Follett Corp., 164 NLRIB 378 (1967), enfd. 397 F.2d 91 (7th Cir 1968); Sec. 9(d) (of the NLRA, as amended. 249 NLRB No. 16 rector in his Decision and Direction of Election constitute an appropriate bargaining unit. Respond- ent denies that a majority of employees within said unit selected the Union as their bargaining repre- sentative and that the Union has been and is now the exclusive collective-bargaining representative of the employees in said unit. Respondent denies that the Union requested Respondent to recognize it as the exclusive collective-bargaining representa- tive of the employees and to bargain collectively with the Union. Respondent denies that it refused, and continues to refuse, to recognize and bargain with the Union as the exclusive collective-bargain- ing representative, and further denies the conclu- sory 8(a)(5) and (1) allegations. On February 7, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on February 13, 1980, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent thereafter filed a brief in response to Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its brief in response to the Notice To Show Cause, Respondent attacks the Union's certification on the basis that the Board has ignored an agree- ment between the parties and refused to provide a forum for Respondent to litigate the issue of whether it had properly discharged nine employees prior to the filing of the representation petition. Review of the record herein reveals that the nine employees were discharged on March 7, 1979. The Union filed the petition in Case 2-RC-18277 and an unfair labor practice charge in Case 2-CA- 16306 on March 12, 1979. On March 14, 1979, Re- spondent and Petitioner entered into an agreement in the Superior Court of Connecticut whereby Re- spondent reinstated the discharged employees and Petitioner agreed to stop picketing, pending the outcome of the unfair labor practice charge. It was further provided that the representation petition would be held in abeyance until the unfair labor practice charge was resolved. On March 26, 1979, the Acting Regional Director granted the Union's request to withdraw the unfair labor practice charge and a hearing in the representation case took place on March 30, 1979. The Regional Di- WINER MOTOR, INC. 81 rector issued her Decision and Direction of Elec- tion on April 24, 1979, in which she found, inter alia, that the Board was not a party to, and not bound by, the March 14 agreement; that the appro- priate unit included the reinstated employees; and that it is the Board's obligation to proceed with the representation matter. On May 7, 1979, Respondent filed a request for review of the Regional Direc- tor's Decision and Direction of Election, which was denied by the Board on May 21, 1979, as it raised no substantial issues warranting review. The election was held on June 1, 1979. At the conclu- sion of the balloting, the tally revealed that three votes had been cast for, and three votes had been cast against Petitioner. There were nine challenged ballots, eight of which were filed by Respondent and concerned the ballots of the employees who were reinstated under terms of the March 14 agree- ment. On June 5, 1979, Respondent filed timely ob- jections to the conduct of the election. On July 13, 1979, the Acting Regional Director issued a Sup- plemental Decision on Objections and Challenges, overruling Respondent's objections and challenges and ordering that all nine challenged ballots be opened and counted and that a revised tally issue. Respondent filed a request for review of the sup- plemental decision on July 25, 1979, which was denied by the Board on September 5, 1979. The re- vised tally of ballots issued on September 27, 1979, revealed that nine votes were cast for, and six votes were cast against Petitioner. On October 5, 1979, Petitioner was certified as representative of the employees. Following the Union's requests, by letters dated October 11 and 19, 1979, that Respondent engage in collective-bargaining negotiations with the Union, Respondent, by letter dated October 22, 1979, refused to bargain collectively with the Union. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- leging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding.2 All issues raised by Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any I See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs, 102.67(0 and 102.69(c). issue which is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a Connecticut corporation en- gaged in the retail sale and service of new and used foreign and domestic automobiles located in Strat- ford, Connecticut. In the course of its business op- erations within the State of Connecticut, Respond- ent annually purchases goods and services valued in excess of $50,000 directly from sources located outside the State of Connecticut and annually de- rives gross revenues in excess of $500,000. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. 11. THE LABOR ORGANIZATION INVOLVED Brewery and Soft Drink Workers, Liquor Driv- ers and New and Used Car Workers, Local 1040, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time new and used, foreign and domestic automobile sales- persons employed by the Employer, excluding office clerical employees, service and mainte- nance employees, guards, and supervisors as defined in the Act. 2. The certification On June 1, 1979, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Director for Region 2, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certi- fied as the collective-bargaining representative of WINER MOTOR, INC. SI 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employees in said unit on October 5, 1979, and the Union continues to be such exclusive repre- sentative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about October 11 and 19, 1979, and at all times thereafter, the Union has re- quested Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about October 22, 1979, and continuing at all times thereafter to date, Respond- ent has refused, and continues to refuse, to recog- nize and bargain with the Union as the exclusive representative for collective bargaining of all em- ployees in said unit. Accordingly, we find that Respondent has, since October 22, 1979, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with its oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Winer Motors, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Brewery and Soft Drink Workers, Liquor Drivers and New and Used Car Workers, Local 1040, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time new and used, foreign and domestic automobile salespersons employed by the Employer, excluding office cleri- cal employees, service and maintenance employees, guards, and supervisors as defined in the Act, con- stitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 4. Since October 5, 1979, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about October 22, 1979, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclu- sive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, WINER MOTOR, INC. 83 Winer Motors, Inc., Stratford, Connecticut, its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Brewery and Soft Drink Workers, Liquor Drivers and New and Used Car Workers, Local 1040, affiliated with the Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the ex- clusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time new and used, foreign and domestic automobile sales- persons employed by the Employer, excluding office clerical employees, service and mainte- nance employees, guards, and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such under- standing in a signed agreement. (b) Post at its Stratford, Connecticut, place of business copies of the attached notice marked "Ap- pendix."s Copies of said notice, on forms provided by the Regional Director for Region 2, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. ' In the event that 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 National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of appeals enforcing an Order of the National Relations Board." (c) Notify the Regional Director for Region 2, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Brewery and Soft Drink Workers, Liquor Drivers and New Car Workers, Local 1040, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive repre- sentative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive repre- sentative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All full-time and regular part-time new and used, foreign and domestic automobile sales- persons employed by the Employer, excluding office clericals, service and maintenance em- ployees, guards, and supervisors as defined in the Act. WINER MOTORS, INC. WINER MOTOR, INC. 83