Fairfield Ford

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the E x­ ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Fairfield Ford and District Lodge 34, International Association of Machinists and Aerospace Work­ ers, AFL–CIO. Case 9–CA–40308 September 5, 2003 DECISION AND ORDER BY MEMBERS LIEBMAN, SCHAUMBER, AND WALSH This is a refusal-to-bargain case in which the Respon­ dent is contesting the Union’s certification as bargaining representative in the underlying representation proceed­ ing. Pursuant to a charge and amended charged filed on June 12 and July 10, 2003, respectively, the General Counsel issued the complaint on July 14, 2003, alleging that the Respondent has violated Section 8(a)(5) and (1) of the Act by refusing the Union’s request to bargain following the Union’s certification in Case 9–RC–17713. (Official notice is taken of the “record” in the representa­ tion proceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer admitting in part and denying in part the allegations in the complaint. On August 5, 2003, the General Counsel filed a Mo­ tion for Summary Judgment. On August 12, 2003, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent did not file a response. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment The Respondent’s answer admits that Respondent has failed and refused to recognize and bargain with the Un­ ion, but denies the appropriateness of the unit and con- tests the validity of the certification in the representation proceeding. All representation issues raised by the Respondent were or could have been litigated in the prior representa­ tion proceeding. The Respondent does not offer to ad­ duce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special cir­ cumstances that would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this un­ fair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord­ ingly, we grant the Motion for Summary Judgment.1 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a corporation, has been engaged in the retail sale and service of auto- mobiles at its Fairfield, Ohio facility. During the 12-month period preceding issuance of the complaint, the Respondent, in conducting its operations described above, derived gross revenues in excess of $500,000 and purchased and received at its Fairfield, Ohio facility goods valued in excess of $50,000 directly from points outside the State of Ohio. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(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. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held November 26, 2002, the Union was certified on April 22, 2003, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time automotive techni­ cians (mechanics), employed by [Respondent] at its Fairfield, Ohio facility, excluding service advisors, the warranty clerk, the dispatcher, body shop employees, salesmen, lot employees, parts department employees, office clerical employees, managerial employees, all other employees, and all professional employees, guards and supervisors as defined in the Act. The Union continues to be the exclusive representative un­ der Section 9(a) of the Act. B. Refusal to Bargain About April 28, 2003, and renewed on May 22, 2003, the Union, in writing, requested the Respondent to rec­ ognize and bargain with it, and, since about June 17, 1 We therefore deny the Respondent’s request that the complaint be dismissed and that Respondent be awarded its costs and reasonable attorneys fees. Members Schaumber and Walsh did not participate in the Bo ard’s May 21, 2003 Order denying the Respondent’s request for review of the Regional Director’s Second Supplemental Decision and Certifica­ tion of Representative. However, they did participate in the Board’s previous, February 5, 2003 Order denying the Respondent’s request for review of the Regional Director’s Decision and Direction of Election. They agree that the Respondent has not raised any new matters or spe­ cial circumstances warranting a hearing in this proceeding or reconsid­ eration of the decision in the representation proceeding, and that sum­ mary judgment is appropriate. 340 NLRB No. 9 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2003, the Respondent, by letter, has failed and refused to do so. We find that the Respondent has thereby unlaw­ fully failed and refused to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing on and after June 17, 2003, to bargain with the Union as the exclusive collective- bargaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor prac­ tices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. 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 an 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 the law, we shall construe the initial period of the cer­ tification 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, Fairfield Ford, Fairfield, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain with District Lodge 34, International Association of Machinists and Aero­ space Workers, AFL–CIO, as the exclusive bargaining representative of the employees in the bargaining unit. (b) In any like or related manner interfering with, re- straining, 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 appro­ priate unit on terms and conditions of employment, and if an understanding is reached, embody the understanding in a signed agreement: All full-time and regular part-time automotive techni­ cians (mechanics), employed by [Respondent] at its Fairfield, Ohio facility, exc luding service advisors, the warranty clerk, the dispatcher, body shop employees, salesmen, lot employees, parts department employees, office clerical employees, managerial employees, all other employees, and all professional employees, guards and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Fairfield, Ohio, copies of the attached no­ tice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondent’s authorized representa­ tive, shall be posted by the Respondent 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 Respon­ dent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all cur- rent employees and former employees employed by the Respondent at any time since June 17, 2003. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re­ sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. Dated, Washington, D.C. September 5, 2003 Wilma B. Liebman, Member Peter C. Schaumber, Member Dennis P. Walsh, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 2 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 Na­ tional Labor Relations Board” shall read “Posted Pursuant to a Judg­ ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” FAIRFIELD FORD 3 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 Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your benefit and protection Choose not to engage in any of these protected ac­ tivities. WE WILL NOT refuse to bargain with District Lodge 34, International Association of Machinists and Aerospace Workers, AFL–CIO, 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 bar- gaining unit: All full-time and regular part-time automotive techni­ cians (mechanics), employed by us at our Fairfield, Ohio facility, excluding service advisors, the warranty clerk, the dispatcher, body shop employees, salesmen, lot employees, parts department employees, office clerical employees, managerial employees, all other employees, and all professional employees, guards and supervisors as defined in the Act. FAIRFIELD FORD