Tom's Ford Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tom's Ford Incorporated and Amalgamated Local Union No. 355. Case 22-CA-8072 May 25, 1978 DECISION AND ORDER BY MEMBERS JENKINS. PENELLO, AND MURPHY Upon a charge filed on November 30, 1977, by Amalgamated Local Union No. 355, herein called the Charging Party or the Union, and duly served on Tom's Ford Incorporated, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 22, is- sued a complaint and notice of hearing on December 21, 1977, against Respondent, alleging that Respon- dent had engaged in and was engaging in unfair la- bor 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. Cop- ies of the charge, 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 November 11, 1977, following a Board election in Case 22-RC- 6840 the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about November 18, 1977, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Charging Party as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On December 30, 1977. Respondent filed its answer to the complaint admit- ting in part, and denying in part, the allegations in the complaint. The Respondent admits all the factual allegations of the complaint, including its refusal to recognize and bargain with the Union. Respondent denies only those paragraphs which relate to the un- derlying representation case and which allege that a majority of the employees of Respondent in the unit described in the complaint designated and selected the Union as their representative for the purposes of collective bargaining and that the Union has been, and is, the representative of a majority of the em- Official notice is taken of the record in the representation proceeding. Case 22 -RC-840, 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 1. T Electrovs.rrtms, In.. 166 NL.RB 938 (1967), enfd. 388 F 2d 683 (' A. 4. 1968); Golden Agi Beverage Co.. 167 NLRB 151 (1967), enfd. 415 1 2d 26 (C.A. 5. 1969): Inierty'pe Co v. Penello, 269 F.Supp. 573 (D.CVa.. 1967). Follert (orp., 164 NLRB 378 (1967). enfd. 397 F. 2d 91 (('.A 7. 19681. Sec. 9(d) of the NLRA, as amended. ployees. Respondent also denies that it violated Sec- tion 8(a)(5) and (1) of the Act. On February 27, 1978, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment and memorandum in support thereof, and submitted in effect that Respondent in its answer was attempting to relitigate issues which had been raised and litigated in the representation case and in a subsequent unfair labor practice pro- ceeding. 2 On March 6, 1978, the Board issued an or- der transferring the proceedings to the Board and Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be grant- ed. Respondent thereafter, on March 18, 1978, filed a memorandum in opposition to the Motion for Sum- mary Judgment. 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 As reflected above, Respondent admits all the fac- tual allegations of the complaint, including its refusal to recognize and bargain with the Union which has been certified as the collective-bargaining representa- tive of the employees described in the complaint. In its response to the Notice To Show Cause, Respon- dent admits again that it refused to bargain with the Union and asserts that the Board's Decision and Or- der which issued October 18, 1977, is not binding as determinative of the challenges to the ballots of Ste- ven Elyard, Victor Webb, and Richard Webb.3 More specifically, Respondent argues that the Motion for Summary Judgment should be dismissed or a ruling with respect thereto be postponed because the ques- tion of the eligibility of Elyard, V. Webb and R. Webb to vote in the September 15, 1976, election is currently pending review in the Third Circuit Court of Appeals, and that reversal of the Board's finding that Elyard, V. Webb and R. Webb were discrimina- torily discharged would not only necessarily invali- date the Union's certification, but would eliminate 2 uoiiiv Ford. Incorpl rated, 233 NLRB 23 (1977. I he representation case was consolidated with allegations of violations of Sec. 8ta)(3) and (I) for hearing. The Board thereafter overruled all challenges and found the viola- tions alleged Amalgamated Local Union No 355. the Charging Party herein. was subsequently certified In its Decision and Order, 7'omi Ford Ineorporated. supra, the Board adopted the Administrative Law Judge's findings and recommendations and directed the Regional Director to open and count the challenged ballots cast by Elyard, V. Webb and R. Webb and prepare and cause to be served on the parties a revised talls of isllots and issue an appropriate certifica- tion. We agreed therein that these employees had been discriminatoril) dis- charged. 236 NLRB No. 47 424 TOM'S FORD INCORPORATED the concomitant duty of Respondent to bargain, which is the basis of the present complaint. We find no merit in Respondent's contentions, "for it is well settled that the pendency of collateral litigation does not suspend the duty to bargain under Section 8(a)(5)." 4 Accordingly, the pendency in the court of appeals of Respondent's petition to review our earlier Decision is no defense to its admitted refusal to bar- gain with the certified representative of its service and parts department unit employees. Clearly by its answer to the complaint and more specifically by its denials, in whole or in part, of the allegations of the complaint and the arguments pro- pounded in its response to the Notice To Show Cause, Respondent is attempting to relitigate the same issues which it raised in Cases 22 CA-7103 and 22-RC-6840. 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.' All issues raised by Respondent in this proceeding were or could have been litigated in the prior consoli- dated proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or previ- ously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the consolidated proceeding. We therefore find that Respondent has not raised any issue which is proper- ly litigable in this unfair labor practice proceeding. We shall, accordingly, grant the motion for Summary Judgment. 6 On the basis of the entire record. the Board makes the following: FINDINGS OF FA(TI I THE BtLSINESS OF THEl RISPONI)ENI At all times material herein, Respondent, a New K4 eller Aluminum Chairs Southern. In., and /eller ladders Southern, In M. subsidiaries of Keller Industries. Inc.. 173 NLRB 947 (1968). citing In fn. 14, Board and court decisions. See also G(reat Dune Trailers. Ins . 191 NL RB 6 (1971). Poria-Kamp Manufacturing Company, Incs 189 NLRB 899 (1971 1 and Sec. 10(g) of the Act which prosides: i'he commencement of proceed- ings under subsection (e) or (f) of this section shall not. unless speclfhall) ordered by the court, operate as a stav of the Board's order" See Pittsburgh Plate Glass Co v. NI RB, 313 S. 146, 162 11941) Rules and Regulations of the Board. Sees 102.671f) and 102.69(c). 6 The General Counsel's request for expenses incurred in the investitgatio and conduct of this case, and related expenses incurred. is denied ais we do not find Respondent's defense herein to be frivolsous. Heck A's In . 215 NL.RB 765 11974)1 Amsterdam Prinsing and litho (Corp. 223 NL.RB 370 11976). enfd. tub nosnt l.cal 259. Graphic .4rts Internation.ll I nion. 4 l'1 C(0 s NI.1.R B, 559 F 2d 187 (C A D.(C. 1977) Jersey corporation, has maintained its principal of- fice and place of business at 200 Route 35, Keyport, New Jersey, and has been continuously engaged at this location in the retail sale and servicing of new and used automobiles. Respondent's Keyport facility is the only facility involved in this proceeding. In the course and conduct of Respondent's busi- ness operations during the previous 12 months, said operations being representative of its operations at all times material herein, Respondent derived gross revenue in excess of $500,000 from the sale and ser- vicing of new and used automobiles. During this same period, Respondent purchased and caused to be shipped to its Keyport, New Jersey, facility auto- mobiles valued in excess of $50,000, and which auto- mobiles were shipped to said location directly from States of the United States other than the State of New Jersey. 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 juris- diction herein. II. THE LABOR ORGANIZATION INVOLVED Amalgamated Local Union No. 355, is a labor or- ganization within the meaning of Section 2(5) of the Act. 111 TIIE UNFAIR LABOR PRACTICES A. The Represenrarion 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 full-time and regular part-time service de- partment and parts department employees em- ployed by the Respondent at its 200 Route 35, Keyport. New Jersey, location, but excluding all new- and used-car sales employees, office cleri- cal employees, professional employees, guards and supervisors as defined in the Act. 2. The certification On September 15, 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 22, designated the Union as their representative for the purpose of collective bargain- 425 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on November 11, 1977, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refuisal Commencing on or about November 16, 1977. and all times thereafter, the Union has requested the Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about November 18, 1977. and continuing at all times thereafter to date, the Respondent has re- fused, and continues to refuse, to recognize and bar- gain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since November 18. 1977, 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, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) and ( 1) of the Act. IV THE EFFi-(F1 O-IF IHE UNFAIR LABOR PRA( I('I-S I'PON' (OMMlERCE The activities of Respondent, set forth in section 111, above, occurring in connection with the opera- tions described in section 1, 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 mean- ing of Section 8(a)(5) and (I) 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 ap- propriate 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 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Bur- nett Construction Companyr, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCL.USIONS OF LAW 1. Tom's Ford Incorporated is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Amalgamated Local Union No. 355 is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time service de- partment employees and parts department employ- ees employed by the Respondent at its 200 Route 35, Keyport, New Jersey, location, but excluding all new- and used-car sales employees, office clerical employees, professional employees and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since November 11, 1977, the above-named la- bor 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 November 18, 1977, and at all times thereafter, to bargain collectively with the above-named labor organization as the ex- clusive 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, 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 mean- ing 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. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- 426 TOM'S FORD INCORPORATED lations Board hereby orders that the Respondent, Tom's Ford Incorporated. Keyport, New Jersey, 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 Amalgamated Local Union No. 355 as the exclusive bargaining represen- tative of its employees in the following appropriate unit: All full-time and regular part-time service de- partment and parts department employees em- ployed by the Respondent at its 200 Route 35, Keyport, New Jersey, location, but excluding all new- and used-car salesmen, office clerical em- ployees, professional employees, 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 200 Route 35, Keyport, New Jersey, copies of the attached notice marked "Appendix.' 7 Copies of said notice, on forms provided by the Re- gional Director for Region 22, 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 In the event that this Order is enforced by a Judgment of a United States ( ourt of Appeals. the words in the notice reading "Posted by Order of the National 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." 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 22. in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX Noric([i To EMPL.OYEE S PosIED BY ORDER 01: I IF. NAIIO()AI LABOR RFIA-riONS BOARD An Agency of the United States Government WF will Nor refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Amal- gamated Local Union No. 355, as the exclusive representative of the employees in the bargain- ing unit described below. WI, \'I.L 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. Wt- wiill 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 full-time and regular part-time service de- partment and parts department employees employed by the Respondent at its 200 Route 35, Keyport, New Jersey, location, but exclud- ing all new- and used-car sales employees, of- fice clerical employees, professional employ- ees, guards and supervisors as defined in the Act. ToMws FoRD IN( ORPORATED 427