Toyota of Walnut Creek, Inc.

TOYOTA OF WALNUT CREEK, INC. 341 Toyota of Walnut Creek, Inc. and Automobile Sales- men's Union, Local No. 1095, affiliated with United Food and Commercial Workers, AFL- CIO. Case 32-CA-3322 June 3, 1981 DECISION AND ORDER Upon a charge filed on January 12, 1981, by Automobile Salesmen's Union, Local No. 1095, af- filiated with United Food and Commercial Work- ers, AFL-CIO, herein called the Union, and duly served on Toyota of Walnut Creek, Inc., herein called Respondent, the General Counsel of the Na- tional Labor Relations Board, by the Regional Di- rector for Region 32, issued a complaint on Janu- ary 28, 1981, against Respondent, alleging that Re- spondent had engaged in and was engaging in unfair labor practices affecting commerce 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 and the com- plaint and notice of hearing before an administra- tive 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 December 16, 1980, following a Board election in Case 32- RC-1051, the Union was duly certified as the ex- clusive collective-bargaining representative of Re- spondent's employees in the unit found appropri- ate;' and that, commencing on or about December 22, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bar- gain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On Febru- ary 9, 1981, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On March 16, 1981, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. 2 Subsequently, on March 19, 1981, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- Official notice is taken of the record in the representation proceed- ing, Case 32-RC-1051, as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electrosystems. Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va. 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. 2 On March 23, 1981, the Union filed with the Board a document in which it joined in the General Counsel's motion for summary judgment, and requested attorney's fees. We hereby deny the Union's request for attorney's fees as lacking in merit. See Tiidee Products Inc, 194 NLRB 1234, 1236 (1972). 256 NLRB No. 52 mary Judgment should not be granted. Respondent thereafter filed a response to the Notice To Show Cause. 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 its response to the Notice To Show Cause, Respondent essentially contests the validity of the Union's certification. Specifically, Respondent contends that the Board erred in overruling its objections to the election. In the Motion for Summary Judgment, the General Counsel maintains that Respondent is attempting to relitigate the issues it raised in the related represen- tation proceeding. We agree with the General Counsel. Review of the record herein, including the record in Case 32-RC-1051, reveals that in the election conducted on June 2, 1980, there were five votes cast for, and two votes cast against, the Union; there were three challenged ballots.3 Re- spondent filed timely objections to the election al- leging, inter alia, that the Union made material mis- representations of fact and law to the employees and made material inducements and promises to the employees to encourage their support for the Union. After investigation, the Acting Regional Di- rector, on June 30, 1980, issued his report on the objections and a notice of hearing, finding that Re- spondent's objections revealed substantial and ma- terial issues of fact which could best be resolved by a hearing. On August 11, 1980, following the hear- ing which was held on July 16 and 17, 1980, the hearing officer issued his Report and Recommen- dations on Objections, in which he recommended that Respondent's ojections be overruled and the Union be certified. Respondent filed with the Board timely exceptions to the Hearing Officer's report and a brief in support thereof. On December 16, 1980, the Board issued a Decision and Certifica- tion of Representative in Case 32-RC-1051, in which it adopted the Hearing Officer's findings and recommendations and certified the Union. It thus appears that Respondent is attempting to raise herein issues which were raised and determined in the underlying representation case. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- leging a violation of Section 8(a)(5) is not entitled 3 The Acting Regional Director later approved the parties' stipulation that the challenge to one ballot be sustained, and thus the remaining chal- lenged ballots were no longer determinative of the election results 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to relitigate issues which were or could have been litigated in a prior representation proceeding. 4 All issues raised by Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discov- ered 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 Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. Accordingly, we 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 RESPONDENT Respondent is, and has been at all times material herein, a California corporation with an office and place of business located at Walnut Creek, Califor- nia, where it is engaged in the retail business of selling automobiles. During the past 12 months, Re- spondent, in the course and conduct of its business operations, derived gross revenues in excess of $500,000, and purchased and received goods or services valued in excess of $5,000 which originat- ed outside the State of California. We find, on the basis of the foregoing, that Re- spondent 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. II1. THE LABOR ORGANIZATION INVOLVED Automobile Salesmen's Union, Local No. 1095, affiliated with United Food and Commercial Work- ers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III111. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All regular full-time and part-time automobile salespersons employed by the Employer at its See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S 146, 162 (1941); Rules and Regulations of the Board, series 8, as amended, Secs. 102.67(f) and 102.69(c). Walnut Creek, California facility; excluding office clerical employees, professional employ- ees, all other employees, guards and supervi- sors as defined in the Act. 2. The certification On June 2, 1980, 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 32, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bar- gaining representative of the employees in said unit on December 16, 1980, and the Union continues to be such exclusive representative within the mean- ing of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about December 22, 1980, and at all times thereafter, the Union has requested 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 December 22, 1980, and con- tinuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive repre- sentative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since December 22, 1980, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respond- ent 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 activities of Respondent set forth in section III, above, occurring in connection with its oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing 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 TOYOTA OF WALNUT CREEK, INC. 343 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 ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Toyota of Walnut Creek, Inc., is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. Automobile Salesmen's Union, Local No. 1095, affiliated with United Food and Commercial Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All regular full-time and part-time automobile salespersons employed by the Employer at its Walnut Creek, California facility; excluding office clerical employees, professional employees, all other employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9(b) of the Act. 4. Since December 16, 1980, 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 December 22, 1980, and at all times thereafter, to bargain collectively with the above-named labor organization as the ex- clusive bargaining representative of all the employ- ees of Respondent in the appropriate unit, Re- spondent 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, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged 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 Re- lations Board hereby orders that the Respondent, Toyota of Walnut Creek, Inc., Walnut Creek, Cali- fornia, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Automobile Sales- men's Union, Local No. 1095, affiliated with United Food and Commercial Workers, AFL-CIO, as the exclusive bargaining representative of its em- ployees in the following appropriate unit: All regular full-time and part-time automobile salespersons employed by the Employer at its Walnut Creek, California, facility; excluding office clerical employees, professional employ- ees, all other employees, guards and supervi- sors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise 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 understanding is reached, embody such under- standing in a signed agreement. (b) Post at its facilities located at Walnut Creek, California, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms pro- vided by the Regional Director for Region 32, 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, 5 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 32, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- 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 Automobile Salesmen's Union, Local No. 1095, affiliated with United Food and Com- mercial Workers, AFL-CIO, as the exclusive representative of the employees in the bargain- ing unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees 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 repre- sentative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All regular full-time and part-time auto- mobile salespersons employed by us at our Walnut Creek, California, facility; excluding office clerical employees, professional em- ployees, all other employees, guards, and su- pervisors as defined in the Act. TOYOTA OF WALNUT CREEK, INC.