Griffith Oldsmobile, Inc.

722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Griffith Oldsmobile, Incorporated and District Lodge 71 , International Association of Machinists & Aerospace Workers, AFL-CIO. Case 17-CA-4201 July 31, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On May 13, 1970, Trial Examiner Charles W. Schneider issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions. to the Trial Examiner's Decision and a supporting brief. 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 powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Deci- sion, the exceptions and the brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Ex- aminer. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that Respondent, Griffith Oldsmobile, Incor- porated, Kansas City, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE The Issue CHARLES W. SCHNEIDER, Trial Examiner: The case arises on a Motion for Summary Judgment filed by counsel for the General Counsel upon an admitted refusal by the Respondent to bargain with the certified Charging Union, the Respondent con- testing the validity of Board rulings in the represen- tation proceeding in which the Union was certified. The Representation Proceeding' Upon a petition filed in Case 17-RC-6030 under Section 9 of the National Labor Relations Act (29 U.S.C.A. 159) on April 28, 1969, by District Lodge 71, International Association of Machinists & Aerospace Workers, AFL-CIO, herein called the Union, the Union and Griffith Oldsmobile, Incor- porated, herein called the Respondent, entered into a Stipulation for Certification Upon Consent Elec- tion, which was approved by the Regional Director for Region 17 of the National Labor Relations Board on May 1, 1969. Pursuant to the stipulation, an election in an ap- propriate bargaining unit , described hereinafter, was held on May 13, 1969, under the direction and supervision of the Regional Director to determine the question of representation. Upon conclusion of the election, the parties were furnished a tally of ballots, which showed that of approximately 12 voters, 6 cast valid ballots for the Union, 4 cast valid ballots against the Union, and 2 ballots were challenged. The challenged ballots were sufficient in number to affect the results of the election. On May 20, 1969, the Respondent filed timely Objections to Conduct Affecting the Results of the Election, alleging in substance that (1) the Union, through its officers, members, agents, and/or ad- herents, engaged in coercion against a background of threats of physical violence and loss of jobs; (2) the secrecy of the balloting was not maintained; (3) the Union engaged in campaigning and soliciting approximately 30 minutes prior to the election in areas adjacent to the polling places; (4) the Union's observer carried on conversations with employees waiting to vote and solicited their support for the Union; and (5) for these reasons it was impossible to conduct, a fair election. Respondent requested that the election be set aside and a new election be ordered, or that a hearing be held on such objec- tions. On September 24, 1969, the Acting Regional Director issued a Report on Objections and Chal- lenged Ballots and Recommendations. In the report he stated that an investigation of the Respondent's objections had been conducted during which all parties were afforded opportunity to submit evidence bearing on the issues . The Acting Re- gional Director found that none of the Respon- dent's objections were sustained by the evidence. ' Administrative or official notice is taken of the record in the represen- tation proceeding , Case 17-RC-6030, as the term "record" is defined in Sections 102 68 and 102 69(f) of Board Rules and Regulations and State- ments of Procedure , Series 8, as amended See LTV Electrosystems, Inc , 166 NLRB 938 , enfd 388 F 2d 683 (C A 4, 1968), cert denied 393 U S 843, Golden Age Beverage Co , 167 NLRB 151, enfd 415 F 2d 26 (C A 5, 1969), Intertype Co v Penello, 269 F Supp 573 (D C Va , 1967), Inter- type Co v N L R B, 401 F 2d 41 (C A 4, 1968), cert denied 393 U S 1049 (1969), Follett Corp, 164 NLRB 378, enfd. 397 F 2d 91 (C.A 7, 1968), Section 9(d) of the National Labor Relations Act 184 NLRB No. 85 GRIFFITH OLDSMOBILE As to the challenged ballots, the Acting Regional Director found that neither of the two employees involved, William L. Land and William T. Arthur, was employed by Respondent at the time of the election. The Regional Director recommended that since it appeared that the Union had secured a majority of the valid votes cast, the Board over- ruled Respondent's objections in their entirety without hearing, sustain the challenges to the bal- lots of Land and Arthur, and certify the Union as the collective-bargaining representative of the em- ployees in the appropriate unit. Thereafter on October 7, 1969, the Respondent filed Exceptions to the Regional Director's Report on Objections and Challenged Ballots and Recom- mendations in which Respondent reiterated its ob- jections to the conduct of the election, and requested that the election be set aside or that a hearing be held on such objections, stating that "the conduct complained of is sufficient to warrant setting aside the election" and that it "would be an abuse of the Board's discretion and would violate the unit employees' right to a free election" if the Board were to adopt the findings of the Acting Re- gional Director. On January 6, 1970, the Board issued a Decision and Certification of Representative, in which the Board stated that it "has considered the Regional Director's Report on Objections and Challenged Ballots and the entire record in the case, including the exceptions and the brief, and hereby adopts the Regional Director's findings and recommenda- tions." The Board further said that, "The Em- ployer's exceptions, in our opinion, raise no materi- al or substantive issues of fact or law which would warrant reversal of the Regional Director's findings and recommendations on objections." Accordingly, the Board certified the Union as the collective-bar- gaining representative of the employees in the ap- propriate unit. The Unfair Labor Practice Case On February 4, 1970, the Union filed the instant unfair labor practice charge alleging that Respon- dent was engaging in unfair labor practices by refusing to bargain with the Union. On March 1 1, 1970, the Regional Director issued a complaint and notice of hearing alleging viola- tions by the Respondent of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act, by refusing since on or about January 8, 1970, and continuing to date , to recognize and bargain with the Union though requested to do so by the Union on or about January 8 and 19, 1970. ' Krieger-Ragsdale & Co, Inc, 159 NLRB 490, enfd 379 F 2d 517 (C A 7, 1967), cert denied 389 U S 1041 See Pittsburgh Plate Glass Co v N L R B, 313 U S 146, 162 (1941 ), NLRB Rules and Regulations, Sec- tions 102 67(f) and 102 69(c) ' 0 K Van and Storage, Inc , 127 NLRB 1537, enfd 297 F 2d 74 (C A 5, 1961) See N L R B v Air Control Window Products, Inc, 335 F 2d 245, 723 On March 23, 1970 , Respondent filed its answer to complaint, in which it denied the representative status of the Union and the commission of unfair labor practices, but admitted most of the remaining material factual allegations of the complaint. On March 31, 1970, counsel for the General Counsel filed a Motion for Summary Judgment, dated March 27, 1970, on the ground that the Respondent 's answer raises no litigable issue of fact requiring hearing . On April 1, 1970, 1 issued an Order To Show Cause on General Counsel's Mo- tion for Summary Judgment, returnable April 15, 1970, and subsequently extended , upon request of counsel for the Respondent , to April 27, 1970. On April 27 , 1970, Respondent filed its response to Trial Examiner 's Order To Show Cause X' b other responses have been received. Ruling on Motion for Summary Judgment Respondent opposes granting of the Motion for Summary Judgment and requests that I review the issues raised by the Respondent's objections to the election, and find that the election should be set aside or, in the alternative, that Respondent is enti- tled to a hearing. It is established Board policy, in absence of newly discovered or previously unavailable evidence, or special circumstances, not to permit litigation be- fore a Trial Examiner in an unfair labor practice case of issues which were or could have been litigated in a prior related representation proceed- ing.2 This policy is applicable even though no for- mal hearing on objections has been provided by the Board. Such a hearing is not a matter of right unless substantial and material issues are raised.3 The Respondent's position is essentially that (1) the evidence before the Board in the representation case established the validity of the Respondent's objections to the election, (2) evidence in any event raised substantial and material factual issues requiring hearing, and (3) there is material new evidence. As indicated above, the representation decision is not to be relitigated in the absence of new evidence or special circumstances. I find neither exception applicable here. Though the Respondent has sub- mitted with its response to the Order To Show Cause signed statements of individuals supporting the Respondent's position, these statements, in the main, represent evidence considered in the Re- gional Director's report on the objections or that was before him in that connection. To the extent that the evidence may be new there is no showing either that it was not known to the Respondent at 249 (C A 5, 1964) "If there is nothing to hear, then a hearing is a sense- less and useless formality " See also N L R B v Bata Shoe Co , 377 F 2d 821, 826 (CA 4, 1967), cert denied 389 U S 917 "there is no require- ment, constitutional or otherwise , that there be a hearing in the absence of substantial and material issues crucial to determination of whether NLRB election results are to be acceptedfor purposes of certification " 427-835 0 - 74 - 47 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the time of the Respondent's exceptions to the Re- gional Director's report on objections, or that it could not have been presented to the Board at that time. The evidence cannot therefore be said to be newly discovered or previously unavailable. In such circumstances the decision of the Board to the ef- fect that the Respondent's objections raised no sub- stantial or material issues affecting the validity of the election is the law of the case at this stage of the proceeding, and may be reviewed only by the Board or a court of appeals. There thus being no unresolved matters requiring an evidentiary hearing the Motion for Summary Judgment of counsel for the General Counsel is granted. Upon the basis of the record before me, I make the following further: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent is a Missouri corporation en- gaged in the sale of new and used motor vehicles, with its place of business located in Kansas City, Missouri. In the course and conduct of its business, the Respondent has annual retail sales of motor vehi- cles in excess of $500,000, and annually purchases motor vehicles directly from outside the State of Missouri valued in excess of $50,000. The Respondent is now , and at all times material herein has been , an employer engaged in commerce within the meaning of Section 2(6) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is, and at all times material herein has been , a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The following employees of Respondent con- stitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All new and used car salesmen, including truck salesmen , but excluding supervisors as defined in the Act and all other employees. On January 6, 1970, the Board certified the Union as the exclusive collective-bargaining representative of the employees in the appropriate unit for purposes of collective bargaining. ' The purpose of this provision is 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. See Mar-Jac Poultry Co , 136 NLRB 785, Commerce Co d/bla Lamar Hotel, 140 NLRB 226, 229, 328 F 2d 600 (C A 5, 1964), cert denied 379 U S 817, Burnett Construction Co, 149 NLRB 1419, 1421, 350 F 2d 57 (C A 10, 1965) 5 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations , and Recommended Order herein On February 12, 1970, and at all times since, Respondent refused to recognize and bargain with the Union as the collective-bargaining representa- tive of said employees, although requested to do so by the Union. By thus refusing to bargain collectively, Respon- dent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and ( 5) and Sec- tion 2(6) and (7) of the Act [sic]. Upon the foregoing findings and conclusions, pursuant to Section 10(c) of the Act, I recommend that the Board issue the following: ORDER A. For the purpose of determining the duration of the certification, the initial year of certification shall be deemed to begin on the date the Respon- dent commences to bargain in good faith with the Union as the recognized exclusive bargaining representative in the appropriate unit.4 B. Griffith Oldsmobile, Incorporated, its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with District Lodge 71, International Association of Machinist & Aerospace Workers, AFL-CIO, as the exclusive collective-bargaining representative of the em- ployees in the following appropriate bargaining unit: All new and used car salesmen, including truck salesmen, but excluding supervisors as defined in the Act and all other employees. (b) Interfering with the efforts of said Union• to negotiate for or represent employees as exclusive collective-bargaining representative. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request bargain collectively with Dis- trict Lodge 71, International Association of Machinists & Aerospace Workers, AFL-CIO, as the exclusive representative of all employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and condi- tions of employment, and embody in a signed agreement any understanding reached. (b) Post at its place of business in Kansas City, Missouri, copies of the attached notice marked "Appendix. "5 Copies of said notice, on forms pro- vided by the Regional Director for Region 17, after being duly signed by an authorized representative, shall be posted by the Respondent immediately upon receipt thereof and be maintained by the shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board " shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " GRIFFITH OLDSMOBILE 725 Respondent for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not al- tered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 17, in writing, within 20 days from receipt of this recommended Order, what steps the Respondent has taken to comply herewith.' "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read " Notify the Regional Director for Region 17, in writing , within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " ing truck salesmen, but excluding super- visors as defined in the Act and all other employees. WE WILL NOT interfere with the efforts of the Union to negotiate for or represent employees as exclusive collective-bargaining representa- tive. WE WILL bargain collectively with the Union as the exclusive collective-bargaining represen- tative of the employees in the appropriate unit, and, if an understanding is reached, we will sign a contract with the Union. GRIFFITH OLDSMOBILE, INCORPORATED (Employer) 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 with District Lodge 71, International Associa- tion of Machinists & Aerospace Workers, AFL-CIO, as the exclusive collective-bargain- Ing representative of all our following em- ployees: All new and used car salesmen, includ- Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, 610 Federal Building, 601 East 12th Street, Kansas City, Missouri 64106, Telephone 816-374-5181.