Martz Chevrolet, Inc.

MARTZ CHEVROLET, INC. 3 Martz Chevrolet, Inc. and District No. 10, Internation- al Association of. Machinists and Aerospace Work- ers, AFL-CIO. Case 30-CA-2383 November 7, 1973 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO Upon a charge filed on June 28, 1973, by District No. 10, International Association of Machinists and Aerospace Workers, AFL-CIO, herein called the Union, and duly served on Martz Chevrolet, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 30, issued a complaint on July 11, 1973, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce 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 before an Adminis- trative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on June 6, 1973, following a Board election in Case 30-RC-1835 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate; 1 and that, commenc- ing on or about June 20, 1973, 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 July 31 and August 2, 1973, Respondent filed its answer and amendment, respectively, to the complaint admitting in part, and denying in part, the allegations in the complaint. On August 8, 1973, counsel for the General Counsel filed directly with the Board a motion for summary judgment. Subsequently, on August 13, 1973, 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. Respondent there- after filed a response to notice to show cause, entitled "Brief Showing Cause Why Summary Judgment Should Not Be Granted." Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority 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 its answer to the complaint and-response to the Notice To Show Cause, the Respondent attacks the validity of the Union's certification primarily on the ground that the ballot determinative of the election in representation Case 30-RC-1835 was void and should not have been counted. The General Counsel, on the other hand, argues that the Respondent is merely renewing contentions `which had been decid- ed against it in the representation proceeding and which may not be relitigated herein. We agree with the General Counsel. Our review of the record herein reflects that, pursuant to a stipulation for certification upon consent election, an election was conducted on September 29, 1972. The tally of ballots showed that of approximately 36 eligible voters, 26 cast ballots, of which 11 were for, and 11 against, the Union, 3 were challenged, and 1, marked with an "X" in the "Yes" box and with the words "Do I ever" underneath, was declared void by the Board agent. Both the Respon- dent and Union filed objections to the conduct of the election. The Union's objections made no -reference to the void ballot issue, although, after the expiration of the 5-day period for filing objections, the Union submitted its position thereon to the Regional Office. After investigating the issues raised by the objec- tions, challenged- ballots, ,and void ballot, the Regional Director, on November 29, 1972, issued his report and recommendations on void ballot, chal- lenged ballots, and objections to conduct affecting the results of the election in which he recommended (1) that the void ballot be validated and counted as a "yes" vote since the voter's intent ,was clear, (2) that the challenge to one ballot be sustained, (3) that the Respondent's objections and one of the Union's three objections be overruled, and (4) that a hearing, consolidated with the hearing in the unfair labor practice Case 30-CA-2430, be held to resolve the issues of the Union's remaining objections and of the two ballots challenged by the Union and Respon- dent, respectively. Thereafter, the Respondent filed timely exceptions to the Regional Director's report with respect to the validating and counting of the void ballot and the overruling of its objections. As to the alleged void 3 Official notice is taken of the record in the representation proceeding, Golden Age Beverage Co., 167 NLRB 151, enfd. 415 F 2d 26 (C.A. 5, 1969); Case 30-RC-1835, as the term "record" is defined in Secs. 102.68 and Intertype Co. Y. Penello, 269 F.Supp. 573 (D.C. Va., 1967); Follett Corp., 164 102.69(f) of the Board's Rules and Regulations, Series 8, as amended. See NLRB 378, enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA. LTV Electrosystems, Inc., 166 NLRB 938, enfd. 388 F.2d 683 (C.A. 4, 1968); 207 NLRB No. 10 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ballot, the Respondent urged that procedurally the Regional Director had no authority to consider in his investigation this issue which, under Section 102.69 of the Board's Rules and Regulations, had not been specifically and timely raised by the Union, and further argued, in effect, that on the merits the ballot was void as a "signal" ballot. By order of January 4, 1973, the Board adopted the Regional Director's findings and recommendations with respect to the consolidated hearing on the challenged ballots and the Union's objections, and directed such a consolidated . hearing before an Administrative Law Judge. It deferred, however, ruling upon the void ballot. At the consolidated hearing, the Respondent and Union withdrew their respective challenges to the two ballots and, in addition, the Union withdrew its objections. The Regional Director then counted these two ballots and issued a revised tally of ballots which showed that there were 12 votes cast for, and 12 against, the Union. Accordingly, the Administrative Law Judge severed the representation case from the unfair labor practice case and remanded it to the Board for determination of the deferred ruling on the void ballots. On June 6, 1973, the Board issued its Decision and Certification of Representative in which, after consideration of the Regional Director's report and the Respondent's exceptions and brief, it adopted the Regional Director's findings and recommendations with respect to the void ballot which the Regional Director had recommended be validated and count- ed as a "yes" vote, and it certified the Union. In so doing, the Board, in footnote 1, specifically rejected the Respondent's contention that, since the Union's objections had failed specifically to refer to the Board agent's ruling that the ballot was void, the Regional Director was without authority to consider the issue of the ballot once the time for filing objections had passed. It concluded that the Respon- dent was not prejudiced by the Regional Director's inclusion of the void ballot issue because both the Union and the Respondent had asserted their positions with respect thereto at the counting of the ballots and because the Respondent had been orally notified, soon after the filing of the objections, that the Union intended its objections to include the conduct of the Board agent. In its response to the notice to show cause, the Respondent alleges, as it did in its exceptions, that neither the Union's business agent nor its observer, who cast the ballot in question, voiced any dissent to the Board agent's voiding the ballot and that a full investigation or hearing would not support the Board's statement to the contrary. Assuming arguen- do that the Union had not expressed its position to the Board agent on the validity of the void ballot, we nevertheless still find, and reaffirm, our previous determination that, under all the circumstances including the fact that soon after the filing of its objections the Respondent admittedly was notified that the Union intended the objections to include the conduct of the Board agent, the inclusion of this issue in the Regional Director's investigation was not prejudicial to the Respondent. It is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding.2 All issues raised by the Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discovered or previously 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 the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. We shall, accordingly, 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 THE RESPONDENT Respondent, a Wisconsin corporation, is engaged in the retail sale and service of automobiles in Menomonee Falls, Wisconsin. During the past calendar year, a representative period, the Respon- dent realized gross revenues in excess of $500,000 in the course and conduct of its business and, during the same period, it purchased and received goods in interstate commerce valued in excess of $50,000 from sources located outside the State of Wisconsin. 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 2 See Pittsburgh Plate Glass Co. v. N.L.R. B., 313 U.S. 146, 162 (1941); employees that he had deliberately marked his ballot ." This specific Rules and Regulations of the Board , Secs. 102.67(f) and 102.69(c). In its allegation was not put forth in the Respondent's representation case response to the notice to show cause , the Respondent also alleges that, after exceptions and there is no showing that this allegation constitutes newly the completion of the first session of balloting, the union observer who had discovered or previously unavailable evidence or special circumstances. cast the alleged void ballot, "stated to the Company's observer and the other MARTZ CHEVROLET, INC. 5 it will effectuate the policies of the Act to assert jurisdiction herein. H. THE LABOR ORGANIZATION INVOLVED District No. 10, International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. tive for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since June 20, 1973, 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, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent constitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time employees engaged in the preparation, repair, maintenance, and servicing of new and used vehicles at the Respondent's Menomonee Falls, Wisconsin, loca- tion, including body shop employees, mechanics, new-car setup men, lot boys, janitors, and parts department employees, but excluding office cleri- cal employees, service writers, salesmen, profes- sional employees, office janitors, guards, and supervisors as defined in the Act. 2. The certification On September 29, 1972, a majority of the employ- ees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Director for Region 30 designated the Union as their representative for the purpose of collective bargaining with the Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on June 6, 1973, 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 Refusal Commencing on or about June 12, 1973, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about June 20, 1973, 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 representa- 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, intimate, 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 com- merce. 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 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 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; Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Company, 149 NLRB 1419, 1421, 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: CONCLUSIONS OF LAW 1. Martz Chevrolet, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. District No. 10, International Association of Machinists and Aerospace Workers, AFL-CIO, is a 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time employees engaged in the preparation, repair, maintenance, and servicing of new and used vehicles at the Respon- dent's Menomonee Falls, Wisconsin, location, in- cluding body shop employees, mechanics, new-car setup men, lot boys, janitors, and parts department employees, but excluding office clerical employees, service writers, salesmen, professional employees, office janitors, 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 June 6, 1973, 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 June 20, 1973, 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, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees 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. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Martz Chevrolet, Inc., 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 District No. 10, International Association of Machinists ' and Aero- space Workers, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time employees engaged in the preparation, repair, maintenance, and servicing of new and used vehicles at the Respondent's Menomonee Falls, Wisconsin, loca- tion, including body shop employees, mechanics, new-car setup men, lot boys, janitors, and parts department employees, but excluding office cleri- cal employees, service writers, salesmen, profes- sional employees, office janitors, '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 Menomonee Falls, Wisconsin, location copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 30 after being duly signed by Respondent's representa- tive, 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 30 in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 3 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 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 concerning rates of pay, wages, hours, and other terms and conditions of employment with District No. 10, International Association of Machinists and Aerospace Workers, 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 MARTZ CHEVROLET, INC. 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 representa- tive 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 an understanding is reached, embody such understanding in a signed agree- ment. The bargaining unit is: All full-time and regular part-time em- ployees engaged in the preparation, repair, maintenance, and servicing of new and used vehicles at the Employer's Menomonee Falls, Wisconsin, location, including body shop employees, mechanics, new-car setup men, lot boys, janitors, and parts department employees, but excluding office clerical employees, service writers, salesmen, profes- 7 sional employees, office janitors, guards, and supervisors as defined in the Act. MARTZ CHEVROLET, 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 compli- ance with its provisions may be directed to the Board's Office, Commerce Building, Second Floor, 744 North Fourth Street, Milwaukee, Wisconsin 53203, Telephone 414-224-3861.