Sandy Crocket Dodge

158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Max W. Hessman and William A. Crocket, a Partnership, d/b/a Sandy Crocket Dodge and International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 87. Case 20-CA-5586 October 15, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA Upon a charge filed by the International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 87, the General Counsel for the National Labor Relations Board, by the Regional Director for Region 20, issued a complaint dated June 11, 1969, against Max W. Hessman and William A. Crocket, a Partnership, d/b/a Sandy Crocket Dodge, herein called the Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices 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, complaint, and notice of hearing were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint alleges, in substance, that on April 10, 1969, the Union was duly certified by the Board as the exclusive bargaining representative of Respondent's employees in the unit found appropriate by the Board and that, since on or about May 6, 1969, Respondent has refused to bargain with the Union as such exclusive bargaining representative, although the Union has requested it to do so. On or about June 16, 1969, Respondent filed its answer, admitting in part, and denying in part, the allegations of the complaint On or about August 12, 1969, the General Counsel filed with the Board a Motion for Summary Judgment, requesting, in view of the admissions contained in Respondent's answer, and the Board's findings in the representation case,' that the allegations of the complaint be found to be true and that the Board make findings of fact and conclusions of law in conformity with the allegations of the complaint Thereafter, on August 15, 1969, the Board issued an Order Transferring Proceeding to the Board and Notice to Show Cause why General Counsel's Motion for Summary Judgment should not be granted. Pursuant thereto, Respondent filed a Response to the Notice to Show Cause requesting that the General Counsel's Motion for Summary Judgment be denied and that the complaint herein be dismissed. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the 'Case 20-RC-8481 National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. Upon the entire record in this case, the Board makes the following: Ruling on the Motion for Summary Judgment On November 19, 1968, the Union filed a petition for an election in the unit hereinafter defined. After a hearing, the Regional Director for Region 20 issued a Decision and Direction of Election on February 27, 1969, in which he found appropriate for collective bargaining the following unit of employees: All new and used car and truck salesmen employed at the Employer's Fresno, California, operations, excluding all other employees, office clerical employees, managers, assistant managers, guards and supervisors as defined in the Act. The Respondent did not file a Request for Review of the Decision and Direction of Election. On April 2, 1969, an election was held, in which a majority of the valid ballots were cast for the Union No objections having been filed, the Union was certified on April 10, 1969 On or about April 29, 1969, the Union requested that Respondent bargain collectively with it. On May 6, 1969, Respondent refused to bargain collectively with the Union, and the Union filed the charges upon which these proceedings are predicated. In its Response to the Notice to Show Cause, Respondent rests its refusal to bargain upon its contentions that the petition filed herein was not filed by an authorized agent of the Union and that the petitioned for unit is inappropriate. Respondent accordingly contests the validity of the Board-conducted election and the Certification of Representative based thereon. It is well settled that in the absence of newly discovered or previously unavailable evidence, a respondent in a Section 8(a)(5) proceeding is not entitled to relitigate issues which were or could have been raised in the prior representation proceeding.' As the Employer filed no request for review to the Regional Director's Decision in the representation case, it is foreclosed from contesting that Decision now ' And as all factual allegations of the complaint are admitted by Respondent's answer to the complaint or stand admitted by the failure of Respondent to controvert the averments of the General Counsel's motion, there are no matters in issue requiring a hearing before a Trial Examiner. Accordingly, the General Counsel's Motion for Summary Judgment is granted. On the basis of the record before it, the Board makes the following: 'Pittsburg Plate Glass Company v N L R B. 313 U S 146, The Sheffield Corporation , 163 NLRB 180, and Collins & Aikman Corp , 160 NLRB 1750 'Section 102 67(f), National Labor Relations Board Rules and Regulations 179 NLRB No. 24 SANDY CROCKET DODGE 159 FINDINGS OF FACT B. The Request to Bargain and the Respondent's Refusal I THE BUSINESS OF THE RESPONDENT Respondent, a partnership, has been doing business under the trade name of Sandy Crocket Dodge, with a place of business in Fresno, California, and at all times material herein, has been engaged in the retail sale of new and used automobiles. During the past year, Respondent, in the course and conduct of its business operations, made retail sales of goods and services in excess of $500,000. During the same period, Respondent purchased and received goods and materials valued in excess of $50,000 directly from suppliers located outside the State of California. We find 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 in this case II. THE LABOR ORGANIZATION INVOLVED International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 87 is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees at the Respondent's Fresno, California, operations constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act: All new and used car and truck salesmen employed at the Employer's Fresno, California, operations; excluding all other employees, office clerical employees, managers, assistant managers, guards and supervisors as defined in the Act. 2. The certification On April 2, 1969, a majority of the employees of Respondent in said unit, in an election by secret ballot conducted under the supervision of the Regional Director for Region 20, designated the Union as their representative for the purpose of collective bargaining with Respondent, and on April 10, 1969, the Regional Director for Region 20 certified the Union as the collective-bargaining representative of the employees in said unit and the Union continues to be such representative. Commencing on or about April 29, 1969, and continuing to date, the Union has been requesting the Respondent to bargain collectively with it with respect to wages, hours, and working conditions of the employees in the appropriate unit. At all times since on or about May 6, 1969, and continuing to date, Respondent did refuse and has continued to refuse to recognize and bargain collectively with the Union as exclusive collective-bargaining representative of all employees in said unit. Accordingly, we find that the Respondent has refused to bargain collectively with the Union as the exclusive bargaining representative of the employees in the appropriate unit, and that, by such refusal, the Respondent 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 acts of the Respondent set forth in section III, above, occurring in connection with its operations as described in section 1, above, have a close, intimate, and substantial relation 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. THE REMEDY Having found that the Respondent has engaged 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 appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial year of certification as beginning on the date the Respondent commences to bargain in good faith with the Union as the recognized 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, 1421, enfd. 350 F.2d 57 (C.A. 10). 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Max W. Hessman and William A. Crockett, a Partnership d/b/a Sandy Crocket Dodge is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2. International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No 87, is a labor organization within the meaning of Section 2(5) of the Act 3. All new and used car and truck salesmen employed at the Employer's Fresno, California, operations; excluding all other employees, office clerical employees, managers, assistant managers, guards, 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 April 10, 1969, the above-named labor organization has been certified as the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about May 6, 1969, 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 has 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 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 Relations Board hereby orders that the Respondent, Max W. Hessman and William A. Crocket, a Partnership, d/b/a Sandy Crocket Dodge, Fresno, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from. (a) Refusing to bargain collectively concerning wages, hours, and other terms and conditions of employment, with international Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No 87, as the exclusive bargaining representative of its employees in the following appropriate unit: All new and used car and truck salesmen employed at the Employer's Fresno, California, operations, excluding all other employees, office clerical employees, managers, assistant managers, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the rights guaranteed to them by 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 understanding in a signed agreement. (b) Post at its Fresno, California, place of business, copies of the attached notice marked "Appendix "4 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 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 said Regional Director for Region 20, in writing, within 10 days from the date of this Decision and Order, what steps Respondent has taken to comply herewith. 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 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 " 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 International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 87, 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 wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. SANDY CROCKET DODGE The bargaining unit is. All new and used car and truck salesmen employed at the Employer's Fresno, California, operations, excluding all other employees, office clerical employees, managers, assistant managers, guards and supervisors, as defined in the Act. Dated By MAX W. HESSMAN AND WILLIAM A. CROCKET, A PARTNERSHIP, D/B/A SANDY CROCKET DODGE (Employer) (Representative ) (Title) THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE 161 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, 13050 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 415-556-3197.