Ozark Automotive Distributors dba O'Reilly Auto Parts

O’REILLY AUTO PARTS 357 NLRB No. 88 1041 Ozark Automotive Distributors, Inc. d/b/a O’Reilly Auto Parts and Teamsters, Chauffeurs, Ware- housemen, Industrial and Allied Workers of America, Local 166, International Brotherhood of Teamsters, CTW. Case 21–CA–039846 September 8, 2011 DECISION AND ORDER BY CHAIRMAN PEARCE 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 June 15, 2011,1 the Acting General Counsel issued the complaint on July 8, 2011, alleging that the Respondent has violated Sec- tion 8(a)(5) and (1) of the Act by refusing the Union’s requests to bargain and to furnish relevant and necessary information following the Union’s certification in Case 21–RC–021222. (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); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer admitting in part and deny- ing in part the allegations in the complaint, and asserting affirmative defenses. On July 29, 2011, the Acting General Counsel filed a Motion for Summary Judgment. On August 1, 2011, 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. Ruling on Motion for Summary Judgment The Respondent admits its refusal to bargain and to furnish requested information, but contests the validity of the certification on the basis of its objections to conduct alleged to have affected the results of the election in the representation proceeding.2 1 In its answer to the complaint, the Respondent states that the charge was filed on June 14, 2011, rather than June 15, 2011. A copy of the charge and affidavit of service, attached as exhibits to the Acting General Counsel’s Motion, show the dates as alleged, and the Respond- ent does not challenge the authenticity of these documents. 2 In its response to the Notice to Show Cause, the Respondent con- tends, inter alia, that it is not clear from the Regional Director’s Report on Objections and notice of hearing that the Region conducted a full and independent investigation of the factual issues raised by its objec- tions. The Respondent contends further that, as the Regional Director has greater discretion in expanding the scope of objections than a hear- ing officer has, the Regional Director abdicated his investigatory role by ordering a hearing before a hearing officer. The Respondent cites the NLRB Casehandling Manual, Part Two–Representation Proceed- ings Sec. 11391.1 and OM Memorandum 04-26, Administrative Inves- tigation vis-a-vis Hearing in Post-election Proceedings (Feb. 12, 2004), 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). We also find that there are no factual issues warranting a hearing with respect to the Union’s request for infor- mation. The complaint alleges, and the Respondent ad- mits, that the Union requested by letter dated May 24, 2011, information concerning the terms and conditions of employment of unit employees. (This letter is attached to this Decision and Order as Attachment A.) It is well established that information concerning the terms and conditions of employment of unit employees is presump- tively relevant for purposes of collective bargaining and must be furnished on request. See, e.g., Metro Health Foundation, Inc., 338 NLRB 802 (2003). The Respond- ent has not asserted any basis for rebutting the presump- tive relevance of the information. Rather, the Respond- ent raises as an affirmative defense its contention, reject- ed above, that the Union was improperly certified. We as setting out the Agency’s considerations in determining whether a hearing or an administrative investigation is appropriate in a given case. As those documents make clear, the Board’s policies in this area are founded on the careful weighing of court decisions and Agency re- sources. In any event, the Respondent’s criticism of Agency policies is simply a prelude to its argument that the hearing officer erred in grant- ing motions to revoke its subpoenas, an argument that the Respondent also raises in its affirmative defenses and that, as discussed below, establishes no basis for a hearing. In its answer to the complaint, the Respondent denies that on March 31, 2011, the Union was certified as the exclusive collective-bargaining representative of the unit and that the unit constitutes an appropriate one for collective bargaining. The Acting General Counsel has at- tached to his motion a copy of the Decision and Certification of Repre- sentative dated March 31, 2011, and the Respondent does not contest the authenticity of this document. Moreover, the appropriateness of the unit and the Union’s status as the collective-bargaining representative of the unit were litigated and resolved in the underlying representation proceeding. Accordingly, the Respondent’s denials with respect to these allegations do not raise any litigable issues in this proceeding. In addition, the Respondent raises affirmative defenses, including, inter alia, that the hearing officer failed to assess all relevant infor- mation and improperly granted the motions to revoke its subpoenas, thereby denying the Respondent a full hearing and violating its right to due process. In issuing its certification of the Union on March 31, the Board reviewed the record, including the hearing officer’s report and the Respondent’s exceptions, and adopted the hearing officer’s findings and recommendations. Thus, the Respondent’s affirmative defenses raise no issues that were not previously decided, and do not require a hearing. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1042 find that the Respondent unlawfully refused to furnish the information sought by the Union. Accordingly, we grant the Motion for Summary Judg- ment, and will order the Respondent to bargain with the Union and to furnish the Union the information request- ed.3 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Missouri cor- poration with its principal place of business in Spring- field, Missouri, and a distribution facility located at 24520 San Michele Road, Moreno Valley, California, has been engaged in the retail distribution of automotive aftermarket parts, tools, supplies, equipment, and acces- sories. During the 12-month period ending July 19, 2010, a representative period, the Respondent, in conducting its business operations described above, derived gross reve- nues in excess of $500,000 from its retail operations, and during the same period of time purchased and received goods valued in excess of $50,000, which goods were shipped directly to the Respondent’s Moreno Valley, California facility from points located 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, Teamsters, Chauf- feurs, Warehousemen, Industrial and Allied Workers of America, Local 166, International Brotherhood of Team- sters, CTW, 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 on August 13, 2010, the Union was certified on March 31, 2011 as the exclusive collective-bargaining representative of the employees in the following appropriate unit: Included: All full-time and regular part-time route drivers with a class A license employed by Respondent 3 Accordingly, we deny the Respondent’s request that the complaint be dismissed in its entirety. Member Becker did not participate in the underlying representation proceeding, and Member Hayes dissented from the Board’s Decision and Certification of Representative. They agree, however, that the Respondent has not raised any new matters or special circumstances warranting a hearing in this proceeding or reconsideration of the deci- sion in the representation proceeding, and that summary judgment is therefore appropriate. at its facility located at 24520 San Michele Road, Moreno Valley, California. Excluded: All other employees, city counter drivers, professional employees, guards and supervisors as de- fined 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 On about May 24, 2011, by letter, the Union requested that the Respondent bargain collectively with the Union as the unit employees’ exclusive collective-bargaining representative and to furnish it with information that is necessary for, and relevant to, the Union’s performance of its duties as the exclusive collective-bargaining repre- sentative of the unit. Since about June 7, 2011, the Respondent has failed and refused to bargain with the Union as the unit em- ployees’ exclusive collective-bargaining representative, and has failed and refused to furnish the Union with the requested information. We find that this failure and re- fusal to bargain and to furnish requested information constitutes an unlawful failure and refusal to recognize and bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing, since June 7, 2011, to bargain with the Union as the exclusive collective-bargaining representative of the employees in the unit and to furnish the Union with requested information, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Sec- tion 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. We shall also order the Respond- ent to furnish the Union the information it requested. 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., O’REILLY AUTO PARTS 1043 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, Ozark Automotive Distributors Inc. d/b/a O’Reilly Auto Parts, Springfield, Missouri, and Moreno Valley, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with Teamsters, Chauffeurs, Warehousemen, Industrial and Allied Workers of America, Local 166, International Brotherhood of Teamsters, CTW, as the exclusive collec- tive-bargaining representative of the employees in the bargaining unit. (b) Failing and refusing to furnish the Union with re- quested information that is necessary for and relevant to its role as the exclusive bargaining representative of the unit employees. (c) 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: Included: All full-time and regular part-time route drivers with a class A license employed by Respondent at its facility located at 24520 San Michele Road, Moreno Valley, California. Excluded: All other employees, city counter drivers, professional employees, guards and supervisors as de- fined in the Act. (b) Furnish the Union the information it requested on May 24, 2011. (c) Within 14 days after service by the Region, post at its facilities in Springfield, Missouri, and Moreno Valley, California, copies of the attached notice marked “Appen- dix.”4 Copies of the notice, on forms provided by the Regional Director for Region 21, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consec- 4 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.” utive days in conspicuous places 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, post- ing on an intranet or an internet site, and/or other elec- tronic means, if the Respondent customarily communi- cates with its employees by such means.5 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 Respondent has gone out of business or closed the facility involved in these proceedings, the Re- spondent shall duplicate 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 June 7, 2011. (d) 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. 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 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 Teamsters, Chauffeurs, Warehousemen, Industrial and Allied Workers of America, Local 166, International Brotherhood of Teamsters, CTW, as the exclusive collec- tive-bargaining representative of the employees in the bargaining unit. 5 For the reasons stated in his dissenting opinion in J. Picini Flooring, 356 NLRB 11 (2010), Member Hayes would not require electronic distribution of the notice. The Respondent asserts in its answer that electronic distribution of the notice is unwarranted as it does not regularly communicate with its drivers by electronic means. This issue is appropriately left for resolu- tion at the compliance stage of this proceeding. Medco Health Solutions of Las Vegas, 357 NLRB No. 25, slip op at 1 fn. 2 (2011). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1044 WE WILL NOT refuse to furnish the Union with request- ed information that is necessary to its role as the exclu- sive collective-bargaining representative of unit employ- ees. 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: Included: All full-time and regular part-time route drivers with a class A license employed by us at our fa- cility located at 24520 San Michele Road, Moreno Val- ley, California. Excluded: All other employees, city counter drivers, professional employees, guards and supervisors as de- fined in the Act. WE WILL furnish the Union the information that it re- quested on May 24, 2011. OZARK AUTOMOTIVE DISTRIBUTORS, INC. D/B/A O’REILLY AUTO PARTS O’REILLY AUTO PARTS 1045 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1046 O’REILLY AUTO PARTS 1047