Trans Rent-A-Car Co.

208H DECISIONS OF NATIONAL LABOR RELATIONS BOARD Trans Rent-A-Car Company and Professional and Clerical Employees Division of Local 856, In- ternational Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 20-CA- 14946 May 1, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE Upon a charge filed on October 26, 1979, by Professional and Clerical Employees Division of Local 856, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, herein called the Union, and duly served on Trans Rent-A-Car Company, herein called Re- spondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 20, issued a complaint and notice of hearing on November 29, 1979, against Respond- ent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National 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 11, 1979, following a Board election in Case 20-RC- 14846, the Union was duly certified as the exclu- sive collective-bargaining representative of Re- spondent's employees in the unit found appropri- ate;1 and that, commencing on or about October 15, 1979, and at all times thereafter, Respondent has refused, and continues to date to refuse, to rec- ognize and to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On December 20, 1979, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On February 7, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on February 15, 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- ' Official notice is taken of the record in the representation proceed- ilg, Case 20-RC 14846, as the term "record" is defined in Sees. 102.68 and 10 2.69 (g) of the Board's Rules and Regulations, Series 8, as amended. See .IT'V Electrotrtems, Inc., 166 N[R3 938 (1967), enfd 388 F 2d 683 (4th Cir 1968): Golden Age Beruge Co., 167 NlRB 151 (1967), enfd 415 F2d 26 (5th Cir. 1969); Inertype ('o. Penello,. 269 F.Supp. 573 (D CVa., 1967); Iollht Corp., h14 NlRII 378 (1967), enfd 397 F 2d 91 (7th Cir 1968); Sec. 9(d) of the NLRA, as amended 249 NLRB No. 32 mary Judgment should not to be granted. Respond- ent thereafter filed a response to the 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 answer to the complaint, Respondent admits, inter alia, that the unit is appropriate, that by letter dated October 15, 1979, the Union re- quested Respondent to bargain collectively for the employees in the unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, 2 and that it has failed and refused to recognize and bargain with the Union as the exclusive collective-bargaining repre- sentative. Respondent denies that the Union is the exclusive representative of the employees in the unit, and that it has violated Section 8(a)(5) and (1) of the Act. In its response to the Notice To Show Cause, Respondent contends that the certification of the Union as bargaining representative must not be al- lowed to stand. 3 It asserts that the Board's certifi- cation was based, in part, upon the principles of Shopping Kart Food Market, Inc.,4 which principles were based upon reasoning now rejected by the Board. The General Counsel contends that Re- spondent has refused to recognize and bargain with the Union for the purpose of testing the Board's certification of the Union as the exclusive bargain- ing agent, and that Respondent has raised no issue not already raised and litigated in the underlying representation proceeding. Review of the record herein, including the record in Case 20-RC-14846, reveals that on July 9, 1979, the parties entered into a Stipulation for Certification Upon Consent Election in a unit of all employees at Respondent's San Francisco Interna- tional Airport and Burlingame, California, loca- tions, including rental agents, clerical employees, lot persons and drivers, but excluding all other em- ployees, mechanics, guards and supervisors as de- ' Respondent denied the complaint allegation that the Union also re- quested it to bargain in a letter dated November 8, 1979 The record con- tains a letter which shows that such a request was addressed to Respond- ent on that date, but, in light of Respondent's admission that it refused the Union's earlier request to hargain, we need not rely on this portion of the complaint ' In its answer to the complaint, Respondent neither admitted nor denied the allegation that the Union was certified by the Board on Octo- hber 11, 1979, as the exclusive collective-bargaining representative of the nit employees. Accordingly, the allegation is held to he admitted. 4 228 NRBH 1311 (1977) TRANS RENT-A-CAR COMPANY 209 fined in the Act. Subsequently, on August 2, 1979, a majority of Respondent's employees in the appro- priate unit designated the Union as their repre- sentative for the purpose of collective bargaining with Respondent. On August 30, 1979, the Region- al Director for Region 20, recommended that Re- spondent's objections to the above-mentioned elec- tion be overruled and that the Union be certified as the exclusive collective-bargaining representative of the employees in the unit. On October 11, 1979, the Board adopted the Regional Director's recom- mendation and certified the Union. Contrary to Re- spondent's assertion, the Board's decision in the un- derlying representation proceeding was not "based in part" upon the principles of Shopping Kart Food Market, Inc., supra. The majority adopted the Re- gional Director's recommendations to overrule Re- spondent's objections because the union conduct did not violate the standards established by the Board in Hollywood Ceramics Company, Inc., 140 NLRB 221 (1962), and Member Penello, in adopt- ing the Regional Director's recommendation, did so for the reasons set forth in Shopping Kart Food Market, Inc. It thus appears that Respondent is at- tempting in this proceeding to relitigate issues re- lating to the conduct and the exclusive representa- tive status of the Union, which were fully litigated and finally determined in the underlying represen- tation proceeding. 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 proceedings 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 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: 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(f) and 102.69(c). FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is, and has been at all times material herein, a California corporation with principal of- fices located in San Diego, California, and has been engaged in the business of renting cars at retail and for commercial use in California and in various other States of the United States. During the calen- dar year 1978, the Employer received gross reve- nue in excess of $500,000. During the same period, Respondent purchased in excess of $50,000 worth of goods directly from points outside the State of California. 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. II. THE LABOR ORGANIZATION INVOLVED Professional and Clerical Employees Division of Local 856, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding I. 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 employees employed by the Employer at its San Francisco International Airport loca- tion, and at its 1755 Old Bayshore Highway, Burlingame, California, location including rental agents, clerical employees, lot persons and drivers; excluding all other employees, mechanics, guards and supervisors as defined in the Act. 2. The certification On August 2, 1979, a majority of the employees of Respondent in said unit, in a secret-ballot elec- tion conducted under the supervison of the Region- al Director for Region 20, 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 the employees in said unit on October 11, 1979, and the Union continues to be such exclusive rep- TRANS RENT-A-CAR COMPANY 20' 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD resentative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about October 15, 1979, and all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about October 15, 1979, and con- tinuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive repre- sentative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since October 15, 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. Trans Rent-A-Car Company is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. Professional and Clerical Employees Division of Local 856, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The following employees of Respondent con- stitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act: All employees employed by the Employer at its San Francisco International Airport loca- tion, and at its 1755 Old Bayshore Highway, Burlingame, California, location including rental agents, clerical employees, lot persons and drivers; excluding all other employees, mechanics, guards and supervisors as defined in the Act. 4. Since October 11, 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 15, 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)(1) 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- --- --- TRANS RENT-A-CAR COMPANY 211 lations Board hereby orders that the Respondent, Trans Rent-A-Car Company, San Diego, Califor- nia, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, and other terms and conditions of employment with Professional and Clerical Em- ployees Division of Local 856, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargain- ing representative of its employees in the following appropriate unit: All employees employed by the Employer at its San Francisco International Airport loca- tion, and at its 1755 Old Bayshore Highway, Burlingame, California, location including rental agents, clerical employees, lot persons and drivers; excluding all other employees, mechanics, 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 San Francisco International Air- port location and Burlingame, California, facility copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 20, 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 6 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 Labor Relations Board." days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonabe steps shall be taken by Respond- ent to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. 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 Professional and Clerical Employees Di- vision of Local 856, 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 in 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 employees employed by the Employer at its San Francisco International Airport lo- cation, and at its 1755 old Bayshore High- way, Burlingame, California, location in- cluding rental agents, clerical employees, lot persons and drivers; excluding all other em- ployees, mechanics, guards and supervisors as defined in the Act. TRANS RENT-A-CAR COMPANY TRANS RENT-A-CAR COMPANY 211..