City Motor Co., Inc.

298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD City Motor Company, Inc. and Local Lodge No. 1046, International Association of Machinists and Aero- space Workers, AFL-CIO. Case 19-CA-6658 October 25, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY deed be admissible.4 The evidence proffered herein, however, does not satisfy such criteria. We note that the Administrative Law Judge inad- vertently neglected to include a description of the appropriate unit in his recommended Order and the "Notice to Employees." We have therefore corrected his recommended Order and the notice to include a description of the appropriate unit. ORDER On February 28, 1974, Administrative Law Judge George Christensen issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Re- spondent filed an answering 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings , findings, and conclusions of the Administrative Law Judge to the extent consistent herein and to adopt his recom- mended Order, as modified. The Administrative Law Judge found, and we agree, that Respondent violated Section 8(a)(1) and (5) of the Act by refusing to bargain with Local Lodge No. 1046, International Association of Ma- chinists and Aerospace Workers, AFL-CIO, herein- after IAM or Charging Party, concerning the wages, rates of pay, hours , and working conditions of Pat Christensen and Pat Bauer.' The Administrative Law Judge also found that Re- spondent did not otherwise violate the Act. He reached the latter conclusion because the issue of the supervisory status of Alma Miller, who the General Counsel alleges should be included in the bargaining unit, was not litigable herein . That issue, he properly found, ( 1) had been litigated in a prior representation case involving the same parties,' and (2) neither the General Counsel nor the Charging Party had either proffered any newly discovered or previously un- available evidence or had shown sufficient changed circumstances to justify permitting relitigation of the issue. We agree with the Administrative Law Judge's analysis.3 He did not rule that such an issue may never be relitigated in a "C" case proceeding. Where newly discovered or previously unavailable evidence or sufficiently changed circumstances exist, or where no party raises objection, such evidence would in- Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that the Respondent, City Motor Company, Inc., Great Falls, Montana, its offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Insert the following language after the final word in paragraph 1: or any other employees in the following appro- priate unit: All office clerical employees employed by City Motor Company at its Great Falls, Mon- tana facility, excluding all shop clerical employ- ees, partsmen, confidential employees, profes- sional employees, guards, supervisors as defined in the Act, and all other employees. 2. Substitute the following paragraph for para- graph 2(a): "(a) Recognize and bargain with the IAM at its request as the duly designated exclusive collective- bargaining representative of its employees in the above-described appropriate unit, which includes Pat Christensen and Pat Bauer, concerning wages, rates of pay, hours, and working conditions." 3. Substitute the attached notice for that of the Administrative Law Judge. In the absence of exceptions, we adopt pro forma these findings of the Administrative Law Judge. I Case 19-RC-6666. 'Jack L. Williams. D.D.S., d/b/a Empire Dental Co., 211 NLRB 860 (1974). Member Jenkins would find that the alleged changed circumstances permitted further litigation of Miller's status as a supervisor but would con- clude on the basis of the total record evidence that Alma Miller is a supervi- sor. Barwood. Inc.. 209 NLRB 19 (1974), where no objection was raised to the introduction of evidence concerning an issue which had been litigated in an earlier representation case involving the same parties, should he distin- guished from the situation herein where objection to such introduction was taken. 214 NLRB No. 38 CITY MOTOR COMPANY, INC. 299 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had the opportunity to present evidence, the National Labor Relations Board found that we violated the law and ordered us to perform certain acts and not to perform others, and to post this notice informing you of them. We therefore wish to inform you that: WE WILL NOT persist in our failure or refusal to bargain with Local Lodge No. 1046, Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO, concerning the wages, rates of pay, hours and working conditions of Pat Christensen and Pat Bauer , or other employ- ees in the bargaining unit described below. The bargaining unit consists of: All office clerical employees employed by us at our Great Falls, Montana facility, exclud- ing all shop clerical employees , partsmen, confidential employees, professional employ- ees, guards, supervisors as defined in the Act, and all other employees. WE WILL, at the request of Local Lodge No. 1046, International Association of Machinists and Aerospace Workers, AFL-CIO, recognize and bargain with it concerning the wages, rates of pay, hours, and working conditions of Pat Christensen and Pat Bauer, and other members of the bargaining unit described above. CITY MOTOR COMPANY, INC. lations Act, as amended (hereinafter called the Act), by refusing to bargain with the IAM concerning the wages, rates of pay, hours, and working conditions of Alma Mill- er, Pat Christensen, and Pat Bauer. City admitted its refusal to bargain with the IAM con- cerning the aforementioned employees, but states it did not commit any violation of the Act because the three persons in question were excluded from the unit found appropriate by the Board in a prior representation proceeding. City alleges the parties stipulated at a hearing concerning that representation proceeding that Miller was in the excluded category of a supervisor and a finding to that effect was entered by Regional Director; a further finding was en- tered that Christensen's predecessor, Marie Welsh, was within the excluded category of a confidential employee; and that those findings are not relitigable in this proceed- ing. City alleges that Bauer was never employed by it, and that the inclusion of these three persons with the unit, with- out affording them an opportunity to cast a ballot regard- ing their choice for collective-bargaining representation, would deprive them of rights guaranteed by the Act. The issues in this proceeding are: 1. Whether the Board order in Case l9-RC-6666 ex- cluding Miller from the voting unit as a supervisor and excluding Welsh as a confidential employee bars the entry of contrary determinations in this proceeding. 2. If not, whether Miller and Christensen are within the unit. 3. Whether Bauer is included within the unit. 4. Whether the entry of an order directing City to bar- gain with the IAM regarding the wages, rates of pay, hours, and working conditions of Miller, Christensen and Bauer without a new election violated rights guaranteed to such employees under the Act. The parties appeared by counsel at the hearing and were afforded full opportunity to adduce evidence, examine and cross-examine witnesses, argue, and file briefs. Briefs have been received from the General Counsel and City. Based on my review of the entire record, observation of the witnesses, perusal of the briefs and research, I enter the following: DECISION STATEMENT OF THE CASE GEORGE CHRISTENSEN , Administrative Law Judge: On December 18, 1973,' I presided over a hearing at Great Falls, Montana , to try issues raised by a complaint issued on November 16 on the basis of a charge filed by Local Lodge No. 1046, International Association of Machinists and Aerospace Workers, AFL-CIO,' on September 26. The complaint alleged that City Motor Company, Inc.,3 violated Section 8(a)(5) and ( 1) of the National Labor Re- 1 Read 1973 after all future date references omitting the year. 2 Hereafter called IAM. Hereafter called City. FINDINGS OF FACT 1. JURISDICTION AND LABOR ORGANIZATION The complaint alleged , City admitted, and I find that City at all times pertinent was a Montana corporation en- gaged in selling autos in Great Falls, Montana; that during the calendar year 1972 City sold goods valued in excess of $500,000 and purchased and received from outside Mon- tana goods valued in excess of $50,000. The complaint alleges, the answer admitted, and I find that City at all times pertinent was an employer engaged in commerce in a business affecting commerce and the IAM was a labor organization within the meaning of Section 2(2), (5), (6), and (7) of the Act. 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 11. THE ALLEGED UNFAIR LABOR PRACTICES A. The Unit and Majority Status 1. The petition On May 4, the IAM filed a petition for certification as the exclusive collective-bargaining representative of City's office and clerical employees. At that time and for some time previous, the IAM represented City's mechanical and related employees and was party to a contract with City for a term extending through 1974. 2. The hearing on the petition and unit findings On May 21, a hearing was conducted on the IAM peti- tion before a Hearing Officer designated by the Regional Director of Region 19. There was no dispute between the parties over the inclusion within the unit of the warranty claims clerk, the telephone operator, and the cashier and those three employees were included within the unit. City objected to the inclusion of Alma Miller within the unit on the grounds she was a supervisor within the meaning of the Act. City also objected to the inclusion of office clerical employees Leona May, Elizabeth Heal, Ladonna Foos, and Marie Welsh on the ground they were confidential employees. Robert Oakland, City's president and general manager was the only witness who testified concerning the duties of the five disputed employees at the hearing. a. Miller Oakland testified that Miller was City's business manag- er-accountant; that she was in charge of all the Company's records; she kept all personnel records and pay records and prepared daily operating records and financial state- ments; she called the employment services when new hires were needed among the office clerical employees and inter- viewed the prospective hires; she either hired or effectively recommended the hire of all but one of the seven office clerical employees then employed by City; she set their rates of pay; she had discharged several office clerical em- ployees; she was paid an hourly rate of pay much higher than the other office clerical employees; she and other de- partment heads regularly received a yearend bonus which was not paid to the other office clerical employees; and she was covered by the same insurance plan as department heads and office clerical employees were not covered there- by. The IAM representative who appeared on its behalf at the hearing stipulated to the exclusion of Miller from the unit based on Oakland's testimony and a finding to that effect was subsequently entered by the Regional Director. Miller was excluded from the unit and did not vote. b. Welsh, May, Foos and Heal Oakland testified that Marie Welsh was his secretary; 4 An admitted supervisor under the Act. typed sales contracts and applications for title and insur- ance contracts; handled his and the department heads' cor- respondence; was in charge of the office clericals in Miller's absence; and typed letters regarding labor rela- tions during a previous IAM attempt to organize City's salesmen . He testified that Leona May did posting and payroll, Elizabeth Heal did bookkeeping and balanced cash, and Ladonna Foos did calculations for the salesmen. City contended that all four thus were privy to "confiden- tial" information and should be excluded from the unit as confidential employees. On the basis of the foregoing, the Regional Director ruled that May, Heal, and Foos were not confidential em- ployees, but that Marie Welsh, apparently on the basis of Oakland's testimony that she was his secretary and typed letters regarding the IAM attempt to organize the sales- men, was a confidential employee with respect to labor relations matters. 3. The unit finding On May 31, the Regional Director issued his decision in Case 19-RC-6666 finding appropriate for collective-bar- gaining purposes a unit consisting of "All" office clerical employees employed by the employer at its Great Falls, Montana facility, excluding all shop clerical employees, partsmen, confidential employees, professional employees, guards, supervisors, as defined in the Act and all other employees." In that decision, he specifically excluded Miller from the unit and eligibility to vote as a supervisor and excluded Welsh from the unit and eligibility to vote as a confidential employee. He directed an election among the other six employees; namely, May, Heal, Foos, the warranty clerk, telephone operator, and cashier.5 4. The election and certification An election was duly conducted on July 2. Five of the six eligible employees participated in the election . All five par- ticipants designated the IAM as their desired collective- bargaining representative . On July 16 the Regional Direc- tor certified that the IAM was the exclusive collective-bar- gaining representative of the unit employees. 5. Conclusion On the basis of the foregoing, I find and conclude that the unit set out in section II,A,3, above, is appropriate for collective-bargaining purposes and that the IAM has repre- sented a majority of City's employees within that unit since July 16. B. The Refusal To Bargain The parties stipulated and I find that on September 24 the IAM requested City to bargain with it concerning the wages, rates of pay, hours, and working conditions of Alma 5 Their names do not appear in the record. CITY MOTOR COMPANY, INC.. 301 Miller, Pat Christensen, and Pat Bauer, and that on that same date City refused to do so. C. The Res Judicata Issue Normally, matters determined in a previous representa- tion proceeding may not be relitigated in an unfair labor practice proceeding involving the same parties, absent newly discovered evidence, previously unavailable evi- dence, or changed circumstances .6 The threshold question is whether the General Counsel or the Union in this pro- ceeding proffered evidence which would justify relitigating the exclusion of Miller and Christensen (as Welsh's re- placement) from the unit. 1. Alma Miller The only evidence produced by the General Counsel or IAM in support of their position that the issue of Miller's exclusion was relitigable consisted of testimony by Alma Miller challenging or contradicting some of Oakland's tes- timony at the representation proceeding. It is clear that Miller was employed by City at the time of the representation hearing and neither the General Counsel nor the lAM produced any proof that any effort was made to call Miller to testify or that she was unable or unwilling to appear. Thus, the proffered evidence at this proceeding is neither newly discovered nor previously unavailable to a diligent representative. With reference to changed circumstances since the rep- resentation hearing, the only evidence proffered was Miller's testimony that she had not hired or discharged any office clericals since the representation hearing nor for a period of time prior thereto, plus a document published by City on August 9 listing Miller as an accountant-assistant office manager rather than accountant-business manager. On the basis of the foregoing, I find and conclude that the General Counsel and the IAM have failed to advance any justification permitting the relitigation of the Regional Director's determination in Case 19-RC-6666 that Alma Miller was a supervisor under the Act and therefore ex- cluded from City's office clerical unit. 1 therefore shall recommend that City's motion to dis- miss those portions of the complaint alleging that City committed an unfair labor practice by refusing to bargain with the IAM concerning Miller's wages, rates of pay, hours, and working conditions violated Section 8(a)(1) and (5) of the Act be granted. D. Pat Christensen and Marie Welsh Marie Welsh quit her City employment on June 30. Pat Christensen was hired on July 10. As noted heretofore, Oakland was the only witness to testify concerning the duties performed by Marie Welsh. A reading of the transcript before the Hearing Officer in the representation proceeding and the findings of the Regional Director, based on the Hearing Officer's report and recom- mendations following the conclusion of that hearing, dis- closes that the Regional Director apparently based his ex- clusion of Welsh from the unit on Oakland's testimony that Welsh was his secretary and typed some correspondence for him concerning an earlier attempt by the IAM to orga- nize City's salesmen. As in the case of Miller, no attempt was made by anyone to call Welsh as a witness at the hearing in the representa- tion proceeding, nor was any evidence proffered that she was unable or unwilling to attend or testify at that proceed- ing. Welsh did testify before me. She testified her sole task having anything to do with labor relations consisted in typ- ing a letter prepared by Oakland addressed to the employ- ees stating the pros and cons of union representation. She stated the letter was typed by her in April or May 1973 and distributed to employees. Such testimony cannot qualify either as newly discov- ered evidence or evidence previously unavailable to a dili- gent representative, nor does it constitute any changed cir- cumstances. The testimony of Marie Welsh shall therefore be disre- garded. However, the uncontradicted testimony of Pat Christen- sen indicates her terms of hire and duties were different from Welsh's and thus qualify as "changed circum- stances." Christensen was hired as a receptionist on the "front desk" in the salesroom, on the display floor, away from the office area. She greeted customers, answered verbal and telephone inquiries, directed customers to salesmen and, when not performing these functions, she typed title appli- cations, bids, and other materials. She did not function as Oakland's "secretary." During the time period dating from her hire to the date of the hearing before me (July 10- December 18) Christensen only spent a tiny portion of her time typing any material dealing with labor relations-and that material consisted of a summary of benefits in answer to a questionnaire, a document for employees to sign relat- ing to whether they wished to take the Monday prior to Christmas and New Year's as holidays, and a dismissal letter. I find that the Christensen testimony demonstrates suffi- cient "changed circumstances" to warrant my consider- ation thereof and further find that Pat Christensen is an "office clerical employee" within the meaning of that lan- guage in the May 31 unit specification and that she is not a "confidential employee" within the unit exceptions. I therefore further find and conclude that City violated Section 8(a)(1) and (5) of the Act by its September 24 re- fusal to bargain with the IAM concerning the wages, rates of pay, hours, and working conditions of Pat Christensen. E. Pat Bauer 6 Pittsburgh Plate Glass Company v. N. L. R. B., 313 U.S. 146 (1941); Wilson & Co., Inc., 159 NLRB 705 (1966): Clark Shoe Company. 88 NLRB 989 (1950); Frito-Lay Inc., 161 NLRB 950 (1966). and Pepsi-Cola Buffalo Bot- tling Company, 171 NLRB 157 (1968). For some time prior to 1973, City operated (and contin- ues to operate) a truck and auto leasing and rental business under a franchise agreement with a national franchiser of 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such operations, Chevway Inc. (hereinafter called Chevway). Under the terms of that franchise agreement, Chevway purchased autos and trucks from City and other dealers and City, as Chevway's agent . leased and rented out vehicles under the usual contracts utilized in that busi- ness, with City named in such leases and rental agreements as the lessor. The leasing and rental operations, at all times pertinent, were conducted by City from a building approximately 100 feet from the building containing its main office, show- room, and shop. Prior to August 6, the clerical work associated with the leasing and rental operations was performed by a manager and two salesmen. These men were under Oakland's direc- tion and supervision and were paid by City. The leasing and rental manager, for some time prior to August, sought to persuade Oakland to hire a full-time office clerical em- ployee to handle the telephone and paperwork at the leas- ing and rental office. Oakland authorized the hire of an office clerical for that purpose in early August. Pat Bauer was interviewed and hired by City's office manager on August 6 to handle the office clerical work at the leasing and rental office. Bauer was paid by City. She punched a timeclock daily at City's main office. The lease and rental records were kept at the main office; Bauer or one of the salesmen or the manager carried the contract files between the two build- ings as the occasion warranted. Bauer's duties consisted of answering the telephone, greeting customers, answering questions, getting information, and typing lease and rental contracts. On two occasions, she also did typing work nor- mally performed by City's office clerical employees at its main office. On the basis of the foregoing, I find and conclude that Bauer at all times since her August 6 hire was an office clerical employee of City within the unit set forth in the Regional Director's May 31 decision and direction of elec- tion and that City therefore violated Section 8(a)(1) and (5) of the Act by its September 24 refusal to bargain with the IAM as Bauer's duly designated exclusive collective-bar- gaining representative of City's employees within that unit. CONCLUSIONS OF LAW 1. At all times pertinent, City was an employer engaged in commerce, in a business affecting commerce and the IAM was a labor organization within the meaning of Sec- tion 2(2), (5), (6), and (7) of the Act. 2. A unit consisting of all office clerical employees em- ployed by City at its Great Falls, Montana facility, includ- ing its leasing and rental facility, excluding all shop clerical employees, partsmen, confidential employees, professional employees, guards, supervisors, as defined in the Act, and all other employees, at all times pertinent has been a unit appropriate for collective-bargaining purposes within the meaning of Section 9 of the Act. 3. Since July 16 the IAM has represented a majority of the employees within the aforesaid unit. 4. At all times since their date of hire, Pat Christensen and Pat Bauer have been office clerical employees em- ployed by City and included within the unit heretofore de- scribed. 5. By its September 24 refusal to bargain with the IAM at its request concerning the wages, rates of pay, hours, and working conditions of Pat Christensen and Pat Bauer, City violated Section 8(a)(1) and (5) of the Act. 6. City has not otherwise violated the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that City engaged in unfair labor practices in violation of Section 8(a)(I) and (5) of the Act, I shall recommend that it be directed to cease and desist there- from and to take certain affirmative action designed to effectuate the purposes of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER7 F. The Absence of an Opportunity to Vote Findings have been entered heretofore that five of the six employees within the unit cast ballots in the election and that all five cast ballots favoring representation by the IAM. It is clear that neither Christensen nor Bauer could have voted in that election inasmuch as they were not employed until a later date. And even if they had been afforded an opportunity to vote and voted against the IAM, the vote nevertheless would have been five to two for IAM repre- sentation. I find the City argument frivolous that an order directing City to bargain with the IAM concerning Christensen and Bauer's wages, etc. violates their Section 7 rights under the Act. The fact employees are hired subsequent to an elec- tion is not a basis for ordering a second election. In any event, the votes of these two employees, even if cast ad- versely, would not affect the results. Respondent City Motor Company, Inc., Great Falls, Montana, its officers , agents, successors, and assigns , shall: 1. Cease and desist from failing or refusing to bargain in good faith through a duly authorized representative or agent with the IAM, at its request, concerning the wages, rates of pay, hours, and working conditions of City em- ployees Pat Christensen and Pat Bauer. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act. (a) Recognize and bargain with the IAM at its request as the duly designated exclusive collective-bargaining rep- resentative of its office clerical employees, including Pat In the event no exceptions are filed as provided by Sec . 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 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. CITY MOTOR COMPANY, INC. 303 Christensen and Pat Bauer, concerning their wages, rates for Region 19, after being duly signed by City's authorized of pay, hours, and working conditions. representative, shall be posted by it immediately upon re- (b) Post at its place of business in Great Falls, Montana, ceipt thereof and maintained by it for 60 consecutive days copies of the attached notice marked "Appendix." 8 Copies thereafter, in conspicuous places, including all places of said notice, on forms provided by the Regional Director where notices to employees are customarily posted. Rea- sonable steps shall be taken by City to insure that such notices are not altered, defaced, or covered by any other In the event that the Board's Order is enforced by a Judgment of a material. United States Court of Appeals, the words in the notice reading "Posted by (c) Notify the Regional Director for Region 19, in writ- Order of the National Labor Relations Board" shall read "Posted Pursuant ing, within 20 days from the date of this Order, what steps to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." City has taken to comply herewith. b