Avis Rent-A-Car System, Inc.

1032 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Avis Rent-A-Car System, Inc. and Local Lodge 724, International -Association of Machinists and Aerospace Workers, AFL-CIO. Case 4-CA- 16527 23 September 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND CRACRAFT Upon a charge filed by the Union 10 April 1987, the General Counsel of -the National Labor Rela- tions Board issued a complaint 21 May 1987 against Avis Rent-A-Car System, Inc. (the Company or the Respondent), alleging that it had violated Sec- tion 8(a)(5) and (1) of the National Labor Relations Act. The complaint alleges that on 24 June 1986, fol- lowing a Board election in Case 4-RC-14839, Local Lodge-724, International Association of Ma- chinists and Aerospace Workers,, AFL-CIO (the Union) was certified as the exclusive collective-bar- gaining representative of the Company's employees in the unit found appropriate. (Official notice is taken of the "record" in the representation pro- ceeding as defined in the Board's Rules and Regu- lations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The complaint further al- leges that since about 11 March 1987 the Company has refused to bargain with the Union and to fur- nish it with certain information. On 3 June 1987 the Company filed its answer admitting in part and denying in part the allegations in the complaint. On 13 July 1987 the General Counsel filed a Motion for Summary Judgment. On 15 July 1987 the Board issued an order transferring the proceed- ing to the Board and a Notice to Show Cause why the motion should not be granted. The Company filed a response. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Summary Judgment In its answer to the complaint, the Company admits that it had refused to bargain collectively with the Union as the exclusive representative of the employees in the unit found appropriate. The Company denies, however, that the Union is the exclusive collective-bargaining representative of its employees, claiming that the Union's certification was inappropriate. , The General Counsel argues that the Company, by its answer .to the complaint, seeks to relitigate issues that were raised or could have been raised during the underlying representation proceeding in 2 281 NLRB 528 (Chairman Dotson dissenting in part) Case 4-RC-14839. The General Counsel argues that there are no litigable issues warranting a hear- / ing. We agree. Review of the record establishes that on 26 August 1981 the Union filed a petition in Case 4- RC-l4839'seeking an election in a unit of the Com- pany's employees. On 16 September 1981 the par- ties executed a Stipulation for Certification Upon Consent Election, which the Regional Director for Region 4 approved on 17 September 1981. On 22 October 1981 a secret-ballot election was conduct- ed among employees in the stipulated, appropriate unit. The Union received a majority of valid votes counted in the election. On 29 October 1981 the Company filed objec- tions to the election. A hearing on the objections was held on 14 and 15 December 1981. On 28 April 1982 the hearing officer issued a report rec- ommending that the objections be overruled and a certification of representative, be issued. The Com- pany filed exceptions, dated 10 May 1982, to the hearing officer's report. On 24 June 1986 the Board issued a Decision and Certification of Representa- tive' overruling the objections and certifying the Union. On 22 July 1986 the Company filed with the Board a "Motion for Reconsideration and/or Re- opening of the Record." On 19 September 1986 the Board denied the motion.2 It is well settled that in the absence of newly dis- covered 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. 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. The Company contends that strike conduct at the same facility during the election campaign by employees in a different unit represented by the Union created an atmosphere of coercion which interfered with the employees' free choice in the election. The strike conduct issue raised by the Company was fully litigated in the prior represen- tation proceeding, and the Respondent does not offer to adduce at a hearing any newly discovered or _ previously unavailable evidence which would require the Board to reexamine the decision made in the representation case in regard to this issue. In further opposition to the Motion for Summary Judgment, the Company alleges that during the time between the election and 23 July 1987 there ' 280 NLRB 580 (Chairman Dotson dissenting in part). 285 NLRB No. 135 AVIS RENT-A-CAR SYSTEM has been an 85-percent turnover rate, and it can no longer be concluded that a majority of employees in the appropriate unit wish to be represented by the Union.3 We find the contention without merit, it being well established that postelection turnover is an insufficient ground to set aside an election. A. G. Parrott Co., 237 NLRB 191 (1978), enf. denied on other grounds 630 F.2d 212 (4th Cir. 1980); Henderson Trumbull Supply Corp., 205 NLRB 245 (1973), enf. denied on other grounds 501 F.2d 1224 (2d Cir. 1974). The Company there- fore does not allege that any new or special cir- cumstances exist which would require the Board to reexamine the decision made in the representation case. We therefore find that the Company has not raised any issue which is properly litigable in this unfair labor practice proceeding.4 Accordingly, we grant the Motion for Summary Judgment. On the entire record, the Board makes the fol- lowing FINDINGS OF FACT 1. JURISDICTION The Company, a Delaware corporation, engages in the car rental business at its facility in Philadel- phia, Pennsylvania, where it annually derives gross revenues in excess of $500,000 and purchases and receives goods valued in excess of $50,000 directly from points outside the Commonwealth of Pennsyl- vania. We find that the Company is an employer engaged in commerce within the meaning of Sec- tion 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 22 October 1981, the Union was certified ' 24 June 1986 as the collective- bargaining representative of the employees in the following appropriate unit- 3 The Company also contends that a shift in its unit work force to em- ployees aged 55 years or older makes the unit employees' wishes even more uncertain 4 The Company has denied the complaint allegation that the informa- tion requested by the Union is necessary for, and relevant to, the Union's performance of its collective-bargaining function The requested informa- tion consists 6f the names, addresses, dates of hire, and wage rates of unit employees, and a description of their fringe benefits and work schedules It is well settled that such information is presumptively relevant for pur- poses of collective bargaining and must be provided on request to the employees' bargaining representative Living & Learning Centers, 251 NLRB 284, 285 (1980), enfd 652 F 2d 209 (1st Cir 1981) We find the Company's bare denial of the relevance of the requested information does not raise any issue requiring a hearing 1033 All full-time and regular part-time shuttlers employed by the Employer at its facility at 6615 Norwitch Drive, Philadelphia, Pennsyl- vania; excluding all other employees, rental agents, service agents, mechanics, office cleri- cal and professional employees, guards, watch- men, and supervisors as defined in the Act. The Union continues to be the exclusive represent- ative under Section 9(a) of the Act. B. Refusals to Bargain Since 5 March 1987 the Union has requested the Company to bargain and to furnish information necessary for and relevant to the Union's perform- ance of its function as the exclusive representative of employees in the unit described above in section II, A. Since 11 March 1987 the Company has re- fused both requests. We find that these refusals constitute unlawful refusals to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By refusing on and after 11 March 1987 to bar- gain with the Union as the exclusive collective-bar- gaining representative of employees in the appro- priate unit and to furnish it with relevant informa- tion, the Company has engaged in unfair labor practices 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, and to provide the Union, on request, information necessary for collective bargaining.5 To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the ini- tial 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). 5 We deny the General Counsel's request for a visitatonal clause, as we find such a provision unnecessary in the circumstances of this case 1034 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ORDER The National Labor Relations Board orders that the Respondent, Avis Rent-A-Car System, Inc., Philadelphia, Pennsylvania, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Local Lodge' 724, International Association of Machinists and Aero- space Workers, AFL-CIO as the exclusive bargain- ing representative of the employees in the bargain- ing unit. (b) Refusing to bargain with the Union by refus- ing to supply relevant information needed by the Union to represent the employees in the bargaining unit described below. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain with the Union as the ex- clusive representative of the employees in the fol- lowing appropriate 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 shuttlers employed by the Employer at its facility at 6615 Norwitch Drive, Philadelphia, Pennsyl- vania; excluding all other employees, rental agents, service agents, mechanics, office cleri- cal and professional employees, guards, watch- men, and supervisors as defined in the Act. (b) Furnish, on request, to the Union the names, addresses, dates of hire, wage rates and benefits, holidays and vacation schedules as well as the work schedules of all employees in the bargaining unit as set out in the Union's written request for in- formation of 5 March 1987. (c) Post at its facility in Philadelphia, Pennsylva- nia, copies of the attached notice marked "Appen- dix."s, Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places s 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 Nation- al 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 " 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. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. CHAIRMAN DOTSON, dissenting. For the reasons set forth in my partial dissenting opinion in the underlying representation proceed- ing, 280 NLRB 580 (1986), I would have set aside the election based on the Union's extensive picket line misconduct, and I would therefore not have issued a certification of representative. According- ly, and contrary to my colleagues, I find that the Respondent has no obligation to bargain with the Union, and I would deny the General Counsel's Motion for Summary Judgment in the instant case. 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 Local Lodge 724, International Association of Machinists and Aerospace Workers, AFL-CIO as the exclu- sive representative of the employees in the bargain- ing unit. WE WILL NOT refuse to bargain with the Union by refusing to supply relevant information needed by the Union to represent the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise 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 full-time and, regular part-time shuttlers employed by the Employer at its facility at 6615 Norwitch Drive, Philadelphia, Pennsyl- vania; excluding all other employees, rental agents, service agents, mechanics, office cleri- cal and professional employees , guards, watch- men, and supervisors as defined in the Act. AVIS RENT-A-CAR SYSTEM 1035 WE WILL, on request, furnish the Union as it re- clusive bargaining representative of the employees quested in its 5 March 1987 letter the information in the bargaining unit. that is relevant and' necessary to its role as the ex- Avis RENT-A-CAR SYSTEM, INC.