New Country Audi

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 112 New Country Audi, Inc. and International Associa- tion of Machinists & Aerospace Workers, AFL– CIO, District Lodge 26. Case 34–CA–12563 November 9, 2010 DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBERS BECKER AND HAYES This is a refusal-to-bargain case in which the Re- spondent is contesting the Union’s certification as bar- gaining representative in the underlying representation proceeding. Pursuant to a charge filed on January 4, 2010, the General Counsel issued the complaint on Janu- ary 8, 2010, alleging that the Respondent has violated Section 8(a)(5) and (1) of the Act by refusing the Un- ion’s request to bargain following the Union’s certifica- tion in Case 34–RC–2320. (Official notice is taken of the “record” in the representation proceeding as defined in the Board’s Rules and Regulations, Sections 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, and as- serting affirmative defenses.1 On January 25, 2010, the General Counsel filed a Mo- tion for Summary Judgment and Memorandum in Sup- port of Motion. On January 26, 2010, 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 a response. On March 2, 2010, the two sitting members of the Board issued a Decision and Order in this proceeding, which is reported at 355 NLRB No. 16 (not reported in Board volumes).2 Thereafter, the Respondent filed a petition for review in the United States Court of Appeals for the District of Columbia Circuit, and the General Counsel filed a cross-application for enforcement. On June 17, 2010, the United States Supreme Court is- sued its decision in New Process Steel, L.P. v. NLRB, 130 S.Ct. 2635, holding that under Section 3(b) of the Act, in order to exercise the delegated authority of the Board, a delegee group of at least three members must be maintained. Thereafter, the Board issued an order setting aside the above-referenced decision and order, and re- 1 The Respondent’s answer denies sufficient knowledge concerning the filing and service of the charge, but admits that it received a copy of the charge on January 7, 2010. 2 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 powers of the National Labor Relations Board in anticipation of the expiration of the terms of Members Kirsanow and Walsh on December 31, 2007. Thereafter, pursuant to this delegation, the two sitting members issued decisions and orders in unfair labor practice and representation cases. tained this case on its docket for further action as appro- priate. On August 24, 2010, the Board issued a further Deci- sion, Certification of Representative, and Notice to Show Cause in Cases 34–CA–12563 and 34–RC–2320, which is reported at 355 NLRB 596. Thereafter, the Acting General Counsel filed an amendment to the complaint in Case 34–CA–12563, and the Respondent filed an amended response to the General Counsel’s Motion for Summary Judgment and Notice to Show Cause and memorandum in support.3 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 admits its refusal to bargain, but con- tests the validity of the certification based on its objec- tions to the election 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.4 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a corporation with a facility located in Greenwich, Connecticut (the Greenwich facility), has been engaged in the retail sale and service of automobiles.5 3 The amendment to the complaint substitutes “August 24, 2010” for “November 18, 2009” in complaint pars. 8 and 9 as the date on which the Union was certified as the exclusive collective-bargaining repre- sentative of the unit employees. Although the Respondent failed to file a timely amended answer to the amendment to the complaint, its amended response to the Motion for Summary Judgment and Notice to Show Cause reiterates the position taken in its answer to the original complaint, in which the Respondent denied that the Union was properly certified by the Board. The Respondent does not dispute that the certi- fication was issued on August 24, 2010. 4 Thus, we deny the Respondent’s request that the complaint be dis- missed in its entirety. 5 In its answer to the complaint, the Respondent states that it is a New York State corporation. To the extent that the Respondent may deny that it is a Connecticut corporation, as alleged in the complaint, we find it unnecessary to resolve this issue because the Respondent admits that it is a corporation. 356 NLRB No. 22 NEW COUNTRY AUDI 113 During the 12-month period ending December 31, 2009, the Respondent, in conducting its business opera- tions described above, derived gross revenues in excess of $500,000, and purchased and received at its Green- wich facility goods valued in excess of $50,000 directly from points located outside the State of Connecticut. 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, International Associa- tion of Machinists and Aerospace Workers, AFL–CIO, District Lodge 26, 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 July 17, 2009, the Union was certified on August 24, 2010, as the exclusive collective-bargaining representative of the em- ployees in the following appropriate unit: All full-time and regular part-time service technicians employed by the Employer at its Greenwich, Connecti- cut Audi facility; but excluding all other employees, of- fice clerical employees, and guards, professional em- ployees, and supervisors as defined in the Act. The Union continues to be the exclusive collective- bargaining representative of the unit employees under Section 9(a) of the Act. B. Refusal to Bargain By letter dated December 14, 2009, the Union request- ed that the Respondent recognize and bargain with it as the exclusive collective-bargaining representative of the unit. By letter dated December 24, 2009, the Respondent advised the Union that it was refusing to recognize and bargain with the Union. It has continued to do so since the Union’s certification. We find that this failure and refusal constitutes an unlawful failure and refusal to rec- ognize and bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing to recognize and bargain with the Union as the exclusive collective-bargaining repre- sentative of employees in the appropriate unit, the Re- spondent 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.6 6 In Howard Plating Industries, 230 NLRB 178, 179 (1977), the Board stated: Although an employer’s obligation to bargain is established as of the date of an election in which a majority of unit employees 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 recognize and bargain on request with the Un- ion 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); 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, New Country Audi, Inc., Greenwich, Con- necticut, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with International Association of Machinists and Aerospace Workers, AFL–CIO, District Lodge 26, as the exclusive collective-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 collective-bargaining representative of the employees in the following appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: vote for union representation, the Board has never held that a simple refusal to initiate collective-bargaining negotiations pend- ing final Board resolution of timely filed objections to the election is a per se violation of Section 8(a)(5) and (1). There must be ad- ditional evidence, drawn from the employer’s whole course of conduct, which proves that the refusal was made as part of a bad- faith effort by the employer to avoid its bargaining obligation. No party has raised this issue, and we find it unnecessary to decide in this case whether the unfair labor practice began on the date of Respondent’s initial refusal to bargain at the request of the Union, or at some point later in time. It is undisputed that the Respondent has continued to refuse to bargain since the Union’s certification and we find that continuing refusal to be unlawful. Regardless of the exact date on which Respondent’s admitted refusal to bargain became unlawful, the remedy is the same. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 114 All full-time and regular part-time service technicians employed by the Employer at its Greenwich, Connecti- cut Audi facility; but excluding all other employees, of- fice clerical employees, and guards, professional em- ployees, and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Greenwich, Connecticut, copies of the at- tached notice marked “Appendix.”7 Copies of the notice, on forms provided by the Regional Director for Region 34, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous plac- es including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means.8 Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, de- faced, 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 December 24, 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. 7 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.” 8 For the reasons stated in his dissenting opinion in J. Picini Floor- ing, 356 NLRB 11 (2010), Member Hayes would not require electronic distribution of the notice. 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 International Association of Machinists and Aero- space Workers, AFL–CIO, District Lodge 26, as the ex- clusive collective-bargaining representative of the em- ployees 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 service technicians employed by us at our Greenwich, Connecticut Audi facility; but excluding all other employees, office cleri- cal employees, and guards, professional employees, and supervisors as defined in the Act. NEW COUNTRY AUDI, INC.