Samson Buick

271 NLRB No. 63 DZH D--1970 Pittsburgh, PA UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD LEEBRO MANAGEMENT, INC. d/b/a SAMSON BUICK, INC. and INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW) Case 6--CA--17106 DECISION AND ORDER Upon a charge filed by the Union 10 February 1984, the General Counsel of the National Labor Relations Board issued a complaint 23 February 1984 against the Company, the Respondent, alleging that it has violated Section 8(a) (5) and (1) of the National Labor Relations Act. The complaint alleges that on 9 December 1983, following a Board election in Case 6--RC--9401, the Union was certified as the exclusive collectivebargaining representative of the Company's employees in the unit found appropriate. (Official notice is taken of the "record" in the representation proceeding as defined in the Board's Rules and Regulations, Secs. 102.68 and 102.69(g), amended Sept. 9, 1981, 46 Fed. Reg. 45922 (1981); Frontier Hotel, 265 NLRB 343 (Nov. 9, 1982).) The complaint further alleges that since 8 February 1984 the Company has refused to bargain with the Union. On 29 February 1984 the Company filed its answer admitting in part and denying in part the allegations in the complaint. On 5 March 1984 the General Counsel filed a Motion for Summary Judgment. On 7 March 1984 the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. 271 NLRB No. 63 D--1970 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment In its answer to the complaint, the Company contests the validity of the Union's certification, contending that the certification was not in accordance with the Act, the Board's Rules and Regulations, or Board and court precedent. The General Counsel argues that the Company is attempting to relitigate issues which it raised or could have raised in Case 6--RC--9401, that the Company does not contend that it has any newly discovered or previously unavailable evidence, and that there are no issues of fact or law requiring a hearing. We agree with the General Counsel. Our review of the record herein, including the record in Case 6--RC-- 9401, discloses that the Union filed a representation petition 31 August 1983. On 25 October 1983 the Acting Regional Director for Region 6 issued a Decision and Direction of Election, finding that a collective-bargaining agreement between the Company's predecessor and the Associated Trades and Crafts Union did not bar the petition. On 7 November 1983 the Company filed with the Board a request for review of the Acting Regional Director's decision. The Company primarily contended that the petition was untimely filed and that the existing collective-bargaining agreement barred the petition. On 28 November 1983 the Board denied the Company's request for review. The Union won the 30 November 1983 election and was certified as the unit employees' bargaining representative 9 December 1983. It is well settled that in the absence of newly discovered and 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 that were or could have been litigated in a prior representation proceeding. D--1970 See Pittsburgh Glass Co. V. NLRB, 313 U.S. 146, 162 (1941); Secs. 102.67(f) and 102.69(c) of the Board's Rules and Regulations. All issues raised by the Company were or could have been litigated in the prior representation proceeding. The Company does not offer to adduce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special circumstances that would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Company has not raised any issue that is properly litigable in this unfair labor practice proceeding. Accordingly we grant the Motion for Summary Judgment. On the entire record, the Board makes the following Findings of Fact I. Jurisdiction The Company, a Pennsylvania corporation, is engaged in the retail sale and servicing of automobiles at its facility in Pittsburgh, Pennsylvania, where it annually derives gross revenues in excess of $500,000 and purchases and receives goods and materials valued in excess of $5,000 directly from points outside the Commonwealth of Pennsylvania. We find that the Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. D--1970 II. Alleged Unfair Labor Practices A. The Certification Following the election held 30 November 1983 the Union was certified 9 December 1983 as the collective-bargaining representative of the employees in the following appropriate unit: All service department employees, including new car prep mechanics, new car checkers, used car lot and clean up employees, used car and customer air conditioner employees, used car conditioners, car jockeys, clean up and janitorial employees, customer service write up employees, mechanic helpers, driver parts counterpersons, mechanics, polishers, rustproofers, body mechanics, mechanic apprentices, lubricators and technician trainees, employed by the Employer at its Pittsburgh, Pennsylvania, facility; excluding office clerical employees, salespersons and guards, professional employees and supervisors as defined in the Act. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain Since 7 February 1984 the Union has requested the Company to bargain, and since 8 February 1984 the Company has refused. We find that this refusal constitutes an unlawful refusal to bargain in violation of Section (a) (5) and (1) of the Act. Conclusions of Law By refusing on and after 8 February 1984 to bargain with the Union as the exclusive collective-bargaining representative of employees in the appropriate unit, the Company has engaged in unfair labor practices affecting commerce within the meaning of Section (a) (5) and (1) and Section 2(6) and (7) of the Act. 1970 Remedy Having found that the Respondent has violated Section 8(a) (5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union and, if any understanding is reached, to embody the understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of the certification as beginning the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, Leebro Management, Inc. d/b/a Samson Buick, Inc., Pittsburgh, Pennsylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), as the exclusive bargaining representative of the employees in the bargaining unit. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclusive representative of the employees in the following appropriate unit on terms and conditions of D--1970 employment and, if an understanding is reached, embody the understanding in a signed agreement: All service department employees, including new car prep mechanics, new car checkers, used car lot and clean up employees, used car and customer air conditioner employees, used car conditioners, car jockeys, clean up and janitorial employees, customer service write up employees, mechanic helpers, driver parts counterpersons, mechanics, polishers, rustproofers, body mechanics, mechanic apprentices, lubricators and technician trainees, employed by the Employer at its Pittsburgh, Pennsylvania, facility; excluding office clerical employees, salespersons and guards, professional employees and supervisors as defined in the Act. (b) Post at its facility in Pittsburgh, Pennsylvania, copies of the attached notice marked ''Appendix.''¹ Copies of the notice, on forms provided by the Regional Director for Region 6, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. 1 If 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. 1970 (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. Dated, Washington, D.C. 23 July 1984 Donald L. Dotson, Chairman Don A. Zimmerman, Member Robert P. Hunter, NATIONAL LABOR RELATIONS BOARD (SEAL) Member D--1970 APPENDIX NOTICE TO EMPLOYEES Posted by Order of the National Labor Relations Board An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), as the exclusive representative of the employees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit: All service department employees, including new car prep mechanics, new car checkers, used car lot and clean up employees, used car and customer air conditioner employees, used car conditioners, car jockeys, clean up and janitorial employees, customer service write up employees, mechanic helpers, driver parts counterpersons, mechanics, polishers, rustproofers, body mechanics, mechanic apprentices, lubricators and technician trainees, employed by the Employer at its Pittsburgh, Pennsylvania, facility; excluding office clerical employees, salespersons and guards, professional employees and supervisors as defined in the Act. LEEBRO MANAGEMENT, INC. d/b/a SAMSON BUICK, 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, 1501 William S. Moorehead Federal Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania 15222, Telephone 412--644--2969.