Super Tire Stores

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Grand Auto, Inc., d/b/a Super Tire Stores and Auto- motive Teamsters, Chauffeurs and Miscellaneous Employees, Local Union No. 165, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America. Case 20-CA- 13974 November 24. 1978 DECISION AND ORDER By CHAIRMAN FANNING AND MEMBERS PENII.I.() AND TRUI SISDAI.i Upon a charge filed on July 26. 1978, by Automo- tive Teamsters, Chauffeurs and Miscellaneous Em- ployees, Local Union No. 165, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and duly served on Grand Auto, Inc., d/b/a Super Tire Stores, herein called Respondent, the General Coun- sel of the National Labor Relations Board, by the Regional Director for Region 20, issued a complaint and notice of hearing on August 11, 1978, and an amendment to complaint on August 29. 1978, against Respondent, alleging that Respondent had engaged in, and was engaging in, unfair labor practices affect- ing commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National La- bor Relations Act, as amended. Copies of the charge, complaint, amendment to 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 com- plaint alleges in substance that on July 6, 1978, fol- lowing a Board election in Case 20-RC-13888, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commenc- ing on or about July 19, 1978, and at all times there- after, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On August 25, 1978, Respondent filed its answer to the complaint admitting in part and denying in part the allegations in the complaint. On August 29, 1978, pursuant to a stipulation of facts entered into by the parties on the same date, the General Counsel filed 'Official notice is taken of the record in the representation proceeding. Case 13 RC 13888, as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations. Series 8, as amended. See LTV Elecrrosvsiems. 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); Inierp'pe Co. v. Penelo, 269 F Supp. 573 ( [)('.Va. 1967); Folleu Corp., 164 NiLRB 378 (1967). enfd. 397 F.2d 91 (7th ('Ir. 1968): Sec 9(d) of the NL.RA. as amended an amendment to complaint clarifying the location of Respondent's place of business. Respondent filed no answer to the amendment to complaint. On September 13, 1978, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment and a motion to strike portions of Respondent's answer.? Subsequently, on Septem- ber 27. 1978, 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 and motion to strike portions of Re- spondent's answer should not be granted. Respon- dent thereafter failed to file a 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 an election held on December 27, 1976, pur- suant to a Stipulation for Certification Upon Con- sent Election, two ballots were cast, one of which was challenged. Following an investigation, the Regional Director issued a report recommending that a hear- ing be held to resolve the issues raised by the chal- lenged ballot. In addition, since the ballot was chal- lenged on the ground that the employee was not an eligible voter because he had been transferred out of the unit before the election, the Regional Director issued an Order consolidating Case 20-RC-13888 with Case 2(0CA- 12535, as it was alleged in the lat- ter case that the challenged voter was transferred in violation of Section 8(a)(3) of the Act. Thereafter, a hearing was held before an Administrative Law Judge. On January 25, 1978, the Administrative Law Judge issued his decision in Cases 20-CA-12535 and 20-RC--13888, finding that the transfer of the chal- lenged voter violated Section 8(a)(3) and (1) of the Act, and recommending that the challenged voter's ballot be opened and counted. Exceptions to the Ad- ministrative Law Judge's decision were filed by Re- spondent and the General Counsel. On June 13, 2 In the motion to strike portiors of Respondent's answer. the (General Counsel requests that Respondent'" denial of par. 6(a). which alleges that on June 22. 1978. a majority of Respondent's employees designated the Uniion as their collective-bargaining representative. as well as Respondent's denial of par 6(b). which alleges that on July 6. 1978. the t nion was certified by the Board as the exclusive representative of Respondent's employees, should be "striken as sham and false" pursuant to the Board's Rules and Regula- tions, Senes 8. as amended. Sec 102 21 In view of our decision to grant the General ('ounsel's Motion for Summniry Judgment. we hereby deny the General ('oiunsel's motion to strike portions If Respondent's answer 452 SUPER TIRE STORES 1978, the Board issued its Decision and Order (Grand Auto, Inc., d/b/a Super Tire Stores, 236 NLRB 877 (1978) ), adopting, with minor modifications not ap- plicable herein, the Administrative Law Judge's find- ings, conclusions, and recommendations, and further ordering the Regional Director for Region 20 to open and count the challenged voter's ballot and issue the appropriate certification. On June 22, 1978, the Re- gional Director prepared a tally of ballots showing that of two eligible voters, two cast ballots for and none against the Union. On July 6, 1978, the Region- al Director issued a Certification of Representative, certifying the Union as the exclusive bargaining rep- resentative of Respondent's employees. By letter dated July 11, 1978, the Union requested Respondent to bargain collectively with respect to wages, hours, and terms and conditions of employ- ment. By letter dated July 19, 1978, Respondent re- fused to bargain with the Union, stating that it was appealing the Board's Decision and Order in 236 NLRB 877, to the United States Court of Appeals for the Ninth Circuit, and that it would refuse to comply with the Board's Decision and Order until that deci- sion was considered by the Ninth Circuit. In its answer to the complaint in the instant case, Respondent denied the allegations in the complaint that "on June 22, 1978, a majority of Respondent's employees . . . designated the Union as their collec- tive bargaining representative in an election conduct- ed by the Board." and that "on July 6, 1978, the Union was certified by the Board as the exclusive representative for purposes of collective bargaining of all employees in the unit described [herein] .... " However, Respondent admitted the allegation that "since on or about July 19, 1978, Respondent, by its officers, agents, and representatives, has refused, and is refusing to bargain with the Union as the represen- tative of the employees in the unit described [herein] .... " Since Respondent has filed no response to the Notice To Show Cause, we assume that the deni- als contained in its answer to the complaint in the instant case are based on its assertion, contained in its letter to the Union dated July 19, 1978, that it does not have to comply with the Board's decision as to the eligibility status of the challenged voter until such time as the Ninth Circuit reviews the Board's Decision and Order in 236 NLRB 877. Under Section 10(g) of the Act, an application to a court of appeals for review of a Board order under Section 10(f) does not operate as a stay of the Board's order unless specifically ordered by the court. There is no evidence in the instant case that the Ninth Circuit has specifically ordered a stay of the Board's Decision and Order in 236 NLRB No. 99 (1978). Thus, "even though the Board's decision ulti- mately may be reversed, the Respondent must honor the certification and its duty to bargain is not post- poned by a pending petition for court review." It is well settled that in the absence of newly dis- covered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to reliti- gate issues which were or could have been litigated in a prior representation proceeding.4 All issues raised by Respondent in this proceeding were or could have been litigated in the prior repre- sentation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or pre- viously 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 proper- ly 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, a California corporation having a place of business located at 6140 Watt Avenue, Sac- ramento County, California, is engaged in the retail and wholesale sale of automobile tires and related products. During the past calendar year, in the course of its operations in California, Respondent has received gross revenues in excess of $500,000, and it has purchased and received goods valued in excess of $50,000 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 luris- diction herein. II THE I.ABOR ORGANIZATION INVOI.VED Automotive Teamsters, Chauffeurs and Miscella- neous Employees, Local Union No. 165, Internation- al Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, is a labor 1 'esrtl/le Homes (Corporation, 196 NI.RH 963 963.964 (1972). and cases cited therein at fn 2. 4See Pirtshurgh Plate Gla.s o v. V. , V R.B, 313 U.S 146, 162 (1941)1 Rules and Regulations of the Board. Secs. 102.67(f) and 102.69(c). 453 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All employees at the Respondent's Sacramento County, California, location, located at 6140 Watt Avenue; excluding office clericals, guards and supervisors as defined in the Act. 2. The certification On December 27, 1976, a majority of the employ- ees of Respondent in said unit, in a secret-ballot elec- tion conducted under the supervision of the Regional Director for Region 20, designated the Union as their representative for the purpose of collective bargain- ing with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on July 6, 1978, and the Union continues to be such exclusive representative within the mean- ing of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about July 11, 1978, and at all times thereafter, the Union has requested Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about July 19, 1978, and continuing at all times thereafter to date, Respondent has refused, and con- tinues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since July 19, 1978, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, Respondent has en- gaged 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 opera- tions described in section I, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 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 appro- priate unit will be accorded the services of their se- lected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate 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. Grand Auto, Inc., d/b/a Super Tire Stores, is an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. Automotive Teamsters, Chauffeurs and Miscel- laneous Employees, Local Union No. 165, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees at the Respondent's Sacramento County, California, location, located at 6140 Watt Avenue; excluding office clericals, guards and super- visors as defined in the Act, constitute a unit appro- priate for the purposes of collective bargaining with- in the meaning of Section 9(b) of the Act. 4. Since July 6, 1978, the above-named labor orga- nization has been and now is the certified and exclu- sive representative of all employees in the aforesaid appropriate unit for the purpose of collective bar- gaining within the meaning of Section 9(a) of the Act. 454 SUPER TIRE STORES 5. By refusing on or about July 19, 1978, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Re- spondent in the appropriate unit, Respondent has en- gaged in, and is engaging in. unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged 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 mean- ing of Section 2(6) and (7) of the Act. gional Director for Region 20, after being duly signed by Respondent's representative, shall be post- ed 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 Respondent to insure that said notices are not altered, defaced, 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 herewith. 5 In the event that this Order is enforced by ajudgment 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 Pursuant to a Judg- ment of the United Stales Court of Appeals Enforcing an Order of the National L abor Relations Board." 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, Grand Auto, Inc., d/b/a Super Tire Stores, Sacra- mento, California, its officers, 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 con- ditions of employment with Automotive Teamsters, Chauffeurs and Miscellaneous Employees, Local Union No. 165, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of its employees in the following appropriate unit: All employees at the Respondent's Sacramento County, California, location, located at 6140 Watt Avenue; excluding office clericals, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise 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 under- standing is reached, embody such understanding in a signed agreement. (b) Post at its store located at 6140 Watt Avenue copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Re- 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 Auto- motive Teamsters, Chauffeurs and Miscella- neous Employees, Local Union No. 165, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees 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 represen- tative of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wag- es, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All employees at the Respondent's Sacra- mento County, California, location, located at 6140 Watt Avenue; excluding office clericals, guards and supervisors as defined in the Act. GRAND AUTO. INC. d/b/a SUPER TIRE STORES 455