Hartzheim Dodge Hayward

354 NLRB No. 22 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can 7 Hartzheim Dodge, Inc. d/b/a Hartzheim Dodge Hay- ward and Machinists Local Lodge No. 1546, Dis- trict Lodge 190, International Association of Machinists and Aerospace Workers. Case 32– CA–24410 May 29, 2009 DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER 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 filed on March 23, 2009, the General Counsel issued the complaint on April 3, 2009, alleging that the Respondent has violated Section 8(a)(5) and (1) of the Act by refusing the Union’s request to bar- gain following the Union’s certification in Case 32–RC– 5577. (Official notice is taken of the “record” in the rep- resentation proceeding as defined in the Board’s Rules and Regulations, Sections 102.68 and 102.69(g); Fron- tier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer, admitting in part and denying in part the allegations in the complaint, and asserting affirmative defenses. On April 17, 2009, the General Counsel filed a Motion for Summary Judgment. On April 23, 2009, 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 filed no response. Ruling on Motion for Summary Judgment1 The Respondent admits its refusal to bargain, but con- tests the validity of the Union’s certification on the basis 1 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kir- sanow and Walsh on December 31, 2007. Pursuant to this delegation, Chairman Liebman and Member Schaumber constitute a quorum of the three-member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act. See New Process Steel v. NLRB, ___ F.3d ___ 2009 WL 1162556 (7th Cir. May 1, 2009), petition for cert. filed __ U.S.L.W. __ (U.S. May 27, 2009) (No. 08–1457); Northeastern Land Services v. NLRB, 560 F.3d 36 (1st Cir. 2009), rehearing denied No. 08–1878 (May 20, 2009). But see Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, ___ F.3d ___, 2009 WL 1162574 (D.C. Cir. May 1, 2009), petition for rehearing filed Nos. 08–1162, 08–1214 (May 27, 2009). of its objections to the election in the representation pro- ceeding. 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. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a California corporation, with an office and place of business in Hayward, California, has been engaged in the sale and servicing of new and used automobiles. During the 12- month period preceding issuance of the complaint, the Respondent, in conducting its business operations de- scribed above, derived gross revenues in excess of $500,000 and purchased and received goods at its facility valued in excess of $50,000 directly from suppliers lo- cated outside the State of California. 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, Machinists Local Lodge No. 1546, District Lodge 190, International Asso- ciation of Machinists and Aerospace Workers, is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the representation election held on Septem- ber 17, 2008, the Union was certified on February 19, 2009, as the exclusive collective-bargaining representa- tive of the employees in the following appropriate unit: All full-time and regular part-time technicians, lube technicians, service advisors, and parts department em- ployees, including parts driver(s), employed by the Employer at its Hayward, California facility; excluding all managerial and administrative employees, auto and truck salespersons, detailers, lot persons, office clerical employees, all other employees, guards, and supervi- sors as defined in the Act. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 The Union continues to be the exclusive collective- bargaining representative of the unit employees under Sec- tion 9(a) of the Act. B. Refusal to Bargain About March 13, 2009, the Union, by letter, requested that the Respondent recognize and bargain with it as the exclusive collective-bargaining representative of the unit. Since about March 18, 2009, the Respondent, by letter, has failed and refused to recognize and bargain with the Union as the exclusive collective-bargaining representa- tive of the unit. We find that this failure and refusal con- stitutes an unlawful failure and refusal to recognize and bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing since about March 18, 2009, to recognize and bargain with the Union as the exclusive collective-bargaining representative of the employees in the appropriate unit, the Respondent has engaged in un- fair labor practices affecting commerce within the mean- ing 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 law, we shall construe the initial period of the certifi- cation 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); and 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, Hartzheim Dodge, Inc. d/b/a Hartzheim Dodge Hayward, Hayward, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with Machinists Local Lodge No. 1546, District Lodge 190, International Association of Machinists and Aerospace Workers, as the exclusive collective-bargaining represen- tative 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 technicians, lube technicians, service advisors, and parts department em- ployees, including parts driver(s), employed by the Employer at its Hayward, California facility; excluding all managerial and administrative employees, auto and truck salespersons, detailers, lot persons, office clerical employees, all other employees, guards, and supervi- sors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Hayward, California, copies of the attached notice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Region 32, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent 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 Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since March 18, 2009. (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. 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.” HARTZHEIM DODGE HAYWARD 3 Dated, Washington, D.C. May 29, 2009 Wilma B. Liebman, Chairman Peter C. Schaumber, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 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 vio- lated 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 bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT fail and refuse to recognize and bargain with Machinists Local Lodge No. 1546, District Lodge 190, International Association of Machinists and Aero- space Workers, as the exclusive collective-bargaining 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 fol- lowing bargaining unit: All full-time and regular part-time technicians, lube technicians, service advisors, and parts department em- ployees, including parts driver(s), employed by us at our Hayward, California facility; excluding all manage- rial and administrative employees, auto and truck salespersons, detailers, lot persons, office clerical em- ployees, all other employees, guards, and supervisors as defined in the Act. HARTZHEIM DODGE, INC. D/B/A HARTZHEIM DODGE HAYWARD