Lipman Motors, Inc.

346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lipman Motors, Inc. and Amalgamated Laundry Workers Joint Board, Amalgamated Clothing Workers of America, AFL-CIO. Case 1-CA-7201 December 18, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS Upon a, charge filed on July 16, 1970, by Amalga- mated Laundry Workers Joint Board, Amalgamated Clothing Workers of America, AFL-CIO, herein called the Union, and served on Lipman Motors, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 1, issued a complaint on August 4, 1970, against Respondent, alleging that Respon- dent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before a Trial Examiner were duly served on the Respondent and the Charging Party. With respect to the unfair labor practices, the complaint alleges that on or about February 26, 1970, in an election conducted by the Regional Director, the Union was duly selected as the exclusive collec- tive-bargaining representative of Respondent's em- ployees in the appropriate unit;1 and that, commenc- ing on or about July 14, 1970, and at all times thereafter, 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 or about August 21, 1970, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint and stating its affirmative defenses. On August 17, 1970, counsel for Charging Party filed with the Regional Director of Region 1 a Motion for Summary Judgment. This motion, referred by the Acting Regional Director to the Chief Trial Examin- er, was transferred to and continued before the Board pursuant to Section 102.50 of the Board's Rules. On August 25, 1970, counsel for the General Counsel filed a Motion for Summary Judgment, which was thereafter referred to the Board, alleging that Respondent in its answer does not deny the pertinent factual allegations of the complaint, does not contend that there is newly discovered evidence or i Official notice is taken of the record in the representation proceeding, Case 1-RC-10933, as the term "record" is defined in Sections 102.68 and 102.69(f) of the Board's Rules and Regulations, Series 8, as amended See LTV Electrosystems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C.A 4, evidence which was not available at the time of the representation proceeding, and, by its affirmative defenses, merely seeks to relitigate issues previously determined in said representation proceeding. Subse- quently, on September 8, 1970, the Board issued an Order transferring the proceeding to the Board and a Notice to Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. On September 16, 1970, the Notice to Show Cause was amended to provide that cause also be shown in writing why the Charging Party's Motion for Summary Judgment should not be granted. Respon- dent thereafter filed a response to Charging Party's and General Counsel's Motions for Summary Judg- ment and Notice to Show Cause, and subsequently submitted a letter dated October 20, 1970, which has been accepted and considered. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment The record establishes that on January 29, 1970, the Respondent and the Union executed an Agreement for Stipulation for Certification Upon Consent Election in Case 1-RC-10933. On February 26, 1970, a majority of employees of Respondent in the agreed appropriate unit selected the Union as their represent- ative for the purposes of collective bargaining with Respondent. On March 5, 1970, Respondent filed timely Objections to Conduct Affecting the Results of the Election, and on April 6, 1970, the Acting Regional Director issued a Report on Objections, recommending that Respondent's Objections be overruled in their entirety and that Certification of Representative be issued. Subsequently, on June 24, 1970, the Board adopted the Acting Regional Direc- tor's findings and recommendations and certified the Union. The Union's request to bargain was rejected by the Respondent in a letter dated July 14, 1970. The Respondent contends that the Board should deny the Motions for Summary Judgment because (1) the Respondent has not had an opportunity to litigate the issues upon which the General Counsel and the Charging Party base their Motions for Summary Judgment; (2) the Board is not empowered under the Act to base a finding that the Respondent committed an unfair labor practice on the recommendations of 1968), Golden Age Beverage Company, 167 NLRB 151, Intertype Company v. Penello, 269 F Supp 573 (D.C Va, 1967), Follett Corporation, et al, 164 NLRB 378, enfd 397 F 2d 91 (C.A 7, 1968), Section 9(d) of the NLRA 187 NLRB No. 36 LIPMAN MOTORS, INC. the Acting Regional Director as contained in his Report on Objections; and (3) a record for a reviewing court can only be developed by denying the Motions for Summary Judgment and remanding the case to a Trial Examiner for hearing. We find these contentions to be without merit. It is well established that, in the absence of newly discovered or previously unavailable evidence or special circumstances, a respondent in an 8(a)(5) proceeding is not entitled to relitigate issues which were or could have been raised in the prior representa- tion proceeding.2 Respondent does not contend that there is newly discovered or previously unavailable evidence bearing on the issues raised in the represent- ation proceeding. Respondent's only substantive contention is, rather, that the Board erred in rejecting its objections to the validity of the election, and in certifying the Union. In rejecting such objections, which involved alleged misrepresentations by the Union concerning its pension plan, and allegedly unlawful preelection polling by the Union, the Board fully considered the objections, the Acting Regional Director's report, and the Respondent's exceptions, which raised no substantial or material issues of fact. Consequently, as all substantive contentions now made were raised in the representation case, and were there considered and rejected by the Board, and as all other factual allegations of the complaint stand admitted by the Respondent's answer thereto, there are no matters in issue requiring a hearing before a Trial Examiner. Nor is there merit to the Respondent's procedural contentions. In the representation proceeding the Respondent had the opportunity to and did litigate the issues which it seeks to raise in this proceeding. The fact that no evidentiary hearing was held with respect to the Respondent's objections to the election does not detract from this conclusion or from the conclusion that the record made herein is sufficient for purposes of court review. For, as has been consistently held, an evidentiary hearing is not required unless, as is not the case here, there are substantial and material issues of fact to be determined; 3 and, although courts have on occasion disagreed with the Board's resolution of particular 2 See Pittsburgh Plate Glass Company v N L R B, 313 U S 146, 162 (1941), Rules and Regulations of the Board, Sections 10267(f) and 102 69(c) 3 Crest Leather Manufacturing Corporation, 167 NLRB 1085, 1086, and cases cited therein 4 See Amalgamated Clothing Workers of America [Winfield Manufactur- ing Company] v N L R B, 424 F 2d 818 (C A D C), and cases cited therein See also cases cited in fns 5 and 7 of the Trial Examiner's Decision in Lyman Printing and Finishing Company, 183 NLRB No 105 In support of its procedural contentions the Respondent also relies in part on cases such as Pepsi-Cola Buffalo Bottling Company v N L R B, 409 F.2d 114 (C.A 2), cert denied 396 U S 904, and on the recent action of the Supreme Court in granting certiorari from the decision of the court of appeals in N L R B v Magnesium Casting Co, 427 F 2d 114 (C A 1) 347 substantive issues, no court has questioned the use of summary judgment procedures even in those cases in which the Board has decided issues relating to objections without holding an evidentiary hearing.4 Accordingly, as we have found the Respondent's contentions to be without merit, and as the Respon- dent has raised no issues properly litigable in this proceeding, we shall grant the Motions for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a Connecticut corporation with its principal office and place of business at 450 Home- stead Avenue and a facility at 133 Washington Street, Hartford, Connecticut, is engaged at said locations in the retail sale and servicing of new and used automobiles. Respondent's annual gross volume of business exceeds $500,000. Respondent annually receives automobiles and automobile parts valued in excess of $50,000 directly from points located outside the State of Connecticut. We find, on the basis of the foregoing, that Respondent 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. H. THE LABOR ORGANIZATION INVOLVED Amalgamated Laundry Workers Joint Board, Am- algamated Clothing Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent consti- tute a unit appropriate for collective-bargaining These cited cases concern the validity of the Board's review procedures with respect to cases decided by a Regional Director under authority delegated to him pursuant to Section 3(b) of the Act The instant case, on the other hand, rests on a decision made by the Board after a review of the entire record, as provided in the stipulation executed by the Respondent in Case I-RC-10933 The Respondent's reliance on the above-cited cases is for that reason and apart from any other considerations misplaced . See the section of the Trial Examiner's Decision entitled "Ruling on Motion for Summary Judgment" in Taber Instruments, Division of Teledyne, inc, 179 NLRB No 59 For these reasons the Respondent's motion of November 19, 1970, requesting the Board to defer further action on this case pending disposition by the United States Supreme Court of the issue in N LR.B v Magnesium Casting Co , supra, is denied 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD purposes within the meaning of Section 9 (b) of the Act: All mechanics, bodymen, service and parts depart- ment employees on new and used cars employed at Respondent's facilities located at 133 Washington Street and 450 Homestead Avenue , Hartford, Connecticut, EXCLUDING office clerical em- ployees, salesmen, guards and all supervisors as defined in Section 2( 11) of the Act. 2. The certification On or about February 26, 1970, 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 1, designated the Union as their representative for the purpose of collective bargaining with the Respondent. On March 5, 1970, Respondent filed timely Objections to Conduct Affecting the Results of the Election. On April 6, 1970, the Acting Regional Director issued a Report on Objections recommending that Respondent's objec- tions be overruled in their entirety and that Certifica- tion of Representative be issued. On June 24, 1970, the Board adopted the Acting Regional Director's findings and recommendations and certified the Union as the collective-bargaining representative of the employees in said unit, and the Union continues to be such representative. B. The Request To Bargain and Respondent's Refusal Commencing on or about June 29, 1970, and at all times thereafter, the Union has requested the Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the employ- ees in the above-described unit. Commencing on or about July 14, 1970, and continuing at all times thereafter to date, the Respondent has refused, and continues 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 the Union was duly certified by the Board as the collective-bargaining representative of the employees of Respondent in the appropriate unit described above in the Board's certification, and that the Union at all times since February 26, 1970, has been and now is the exclusive bargaining representative of all the employees in the aforesaid unit within the meaning of Section 9(a) of the Act. We further find that Respondent has, since 5 The Union's request for a "make-whole" remedy is dented for the reasons set forth in Ex-Cell-0 Corporation 185 NLRB No 20 Member Brown disagrees for the reasons set forth in the dissent in the cited case Its request that the employees be assembled to hear an explanation by the General Counsel and the Union concerning the Respondent's violation of July 14, 1970, refused to bargain collectively in the appropriate unit, and that, by such refusal, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5) 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 operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive represent- ative of all employees in the appropriate unit and, if an understanding is reached, embody such under- standing in a signed agreement. In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certification as beginning on the date Respondent commences to bargain in good faith with the Union as the recogniz- ed bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785; Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, enfd. 350 F.2d 57 (C.A. 10).5 The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Lipman Motors, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Amalgamated Laundry Workers Joint Board, Amalgamated Clothing Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees of the Respondent constitute a unit appropriate for collective-bargaining the Act and the remedy is also denied in the absence of evidence of aggravated unfair labor practices or other circumstances warranting such relief See the section of the Trial Examiner 's Decision entitled "The Remedy" in Taber Instruments, Division of Teledyne, Inc, supra LIPMAN MOTORS, INC. 349 purposes within the meaning of Section 9(b) of the Act. All mechanics, bodymen, service and parts depart- ment employees on new and used cars employed at Respondent's facilities located at 133 Washington Street and 450 Homestead Avenue, Hartford, Connecticut, EXCLUDING office clerical em- ployees, salesmen, guards and all supervisors as defined in Section 2(11) of the Act. 4. Since June 24, 1970, 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 July 14, 1970, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent had engaged 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 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. restraining, or coercing employees in 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 understand- ing is reached, embody such understanding in a signed agreement. (b) Post at its facilities located at 133 Washington Street and 450 Homestead Avenue, Hartford, Con- necticut, copies of the attached notice marked "Appendix."6 Copies of said notice, on forms provided by the Regional Director for Region 1, 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 1, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 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 be changed to read "POSTED PURSUANT TO A JUDGEMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD " ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Lipman Motors, Inc., Hartford, Connecticut, 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 conditions of employment with Amalgamated Laundry Workers Joint Board, Amalgamated Clothing Workers of America, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All mechanics, bodymen, service and parts depart- ment employees on new and used cars employed at Respondent's facilities located at 133 Washington Street and 450 Homestead Avenue, Hartford, Connecticut, EXCLUDING office clerical em- ployees, salesmen, guards and all supervisors as defined in Section 2(11) of the Act. (b) In any like or related manner interfering 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 Amal- gamated Laundry Workers Joint Board, Amalga- mated Clothing Workers of America, AFL-CIO, 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 representative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an understanding is reached, embody such under- standing in a signed agreement. The bargaining unit is: All mechanics, bodymen, service and parts department employees on new and used cars employed at Respondent' s facilities located at 133 Washington Street and 450 Homestead Avenue, Hartford, Connecticut, EXCLUDING office clerical employees, salesmen, guards and all supervisors as defined in Section 2(11) of the Act. LIPMAN MOTORS, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Bulfinch Building, Seventh Floor, 15 New Chardon Street, Boston, Massachusetts 02114, Tele- phone 617-223-3330.