IMPORT MOTORS II, INC. DBA AUDI CONCORD

372 NLRB No. 112 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- 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. Import Motors II, Inc. dba Audi Concord and Ma- chinists Automotive Trades District Lodge No. 190, Machinist Local 1173. Case 32–CA–281627 July 31, 2023 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN AND WILCOX This is a refusal-to-bargain case in which the Re- spondent, Import Motors II, Inc. dba Audi Concord, is contesting the Union’s certification as bargaining repre- sentative in the underlying representation proceeding. Pursuant to a charge filed on August 18, 2021, by the Machinists Automotive Trades District Lodge No. 190, Machinists Local 1173 (the Union), the General Counsel issued a complaint on April 27, 2023, alleging that the Respondent has violated Section 8(a)(5) and (1) of the Act by failing and refusing to recognize and bargain with the Union following the Union’s certification in Case 32–RC–272003. (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(d). Frontier 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 May 26, 2023, the General Counsel filed a Motion for Summary Judgment. The Respondent did not file an opposition. On June 2, 2023, the Board issued an Order Transferring the Proceeding to the Board and a Notice to Show Cause why the motion should not be granted. On June 16, 2023, the Union filed a self-styled Joinder and Reply in which it urges the Board to grant the motion and impose additional extraordinary remedies.1 The Re- spondent filed neither a response to the Notice to Show Cause nor a reply to the Union’s filing. 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 Union’s certification of repre- sentative based on its contention, raised and rejected in the underlying representation proceeding, that the Union engaged in objectionable conduct prior to the election.2 1 We construe this filing as a response to the Notice to Show Cause. 2 In its answer, the Respondent admits that it has refused to bargain with the Union “based on improper conduct of the election and circum- stances leading up to the election” but denies the rest of the allegation 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 has it established any special circumstances 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.3 On the entire record, the Board makes the following in par. 9 of the complaint, which asserts that the Respondent has re- fused to recognize and bargain with the Union as the exclusive collec- tive-bargaining representative of the unit by communications dated August 16, 2021, April 26, 2023, and continuing to date. The Re- spondent’s answer also denies pars. 7(h) and 10, which allege that the Union is the exclusive collective-bargaining representative of the unit and that the Respondent’s refusal to bargain violates Sec. 8(a)(5) and (1). The Respondent’s responses to these allegations, as well as several of its affirmative defenses, are premised on the Respondent’s assertion that it had no duty to bargain with the Union due to the facts and cir- cumstances underlying its post-election objections. These issues, how- ever, were fully litigated and resolved in the underlying representation proceeding. Par. 5 of the complaint alleges, but the Respondent denies, that two named individuals and one unnamed individual have at all material times been supervisors and agents within the meaning of Sec. 2(11) and (13) of the Act. The Respondent’s denials do not preclude summary judgment or raise material issues of fact warranting a hearing because the Respondent admits that the Union made demands to bargain after March 23, 2021, and that it has refused to bargain with the Union. The Respondent’s answer advances various additional affirmative defenses. The Respondent has not, however, offered any explanation or evidence to support the bare assertions of its affirmative defenses. Thus, we find that they are insufficient to warrant denial of the General Counsel’s Motion for Summary Judgment. See, e.g., Sysco Central California, Inc., 371 NLRB No. 95, slip op. at 1 fn. 1 (2022); Station GVR Acquisition, LLC d/b/a Green Valley Ranch Resort Spa Casino, 366 NLRB No. 58, slip op. at 1 fn. 1 (2018) (citing cases), enfd. sub nom. Operating Engineers Local 501 v. NLRB, 949 F.3d 477 (9th Cir. 2020); George Washington University, 346 NLRB 155, 155 fn. 2 (2005), enfd. mem. per curiam No. 06-1012, 2006 U.S. App. LEXIS 29286 (D.C. Cir. Nov. 27, 2006); Circus Circus Hotel, 316 NLRB 1235, 1235 fn. 1 (1995). In addition, there is no merit to the Respond- ent’s claim that Sec. 10(b) bars some or all of the allegations in the complaint. Indeed, the charge was filed on August 18, 2021, and the complaint alleges that the Respondent’s refusal to bargain began on August 16, 2021. In any event, because the Respondent filed neither an opposition to the General Counsel’s Motion for Summary Judgment nor a response to the Board’s Notice to Show Cause, we treat the Gen- eral Counsel’s Motion for Summary Judgment as conceded pursuant to Sec. 102.24(b) of the Board’s Rules and Regulations (“If the opposing party files no opposition or response, the Board may treat the motion as conceded, and default judgment, summary judgment, or dismissal, if appropriate, will be entered.”). 3 The Respondent’s request that the complaint be dismissed is there- fore denied. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, Import Motors II, Inc. dba Audi Concord, has been a California corpora- tion and a subsidiary of Sojitz Automotive Group, Inc., with an office and place of business located in Concord, California, where it is engaged in the retail sale and ser- vice of automobiles. During the 12-month period ending August 30, 2021, the Respondent derived gross revenues exceeding $500,000. During the same period, the Respondent pur- chased and received materials valued in excess of $5000 directly from points 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 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, conducted by mail between March 1 and 23, 2021, the Regional Direc- tor issued a decision on August 3, 2021, overruling the Respondent’s objections to the election and certifying the Union as the exclusive collective-bargaining representa- tive of the employees in the following appropriate unit: All full-time and regular part-time Service Advisors and Service Advisors-internal employed by the Em- ployer at its facility located at 1300 Concord Avenue, Concord, CA 94520; excluding all other employees, confidential employees, office clerical employees, guards, and supervisors as defined by the National La- bor Relations Act. On October 25, 2021, the Board denied the Respondent’s request for review of the Regional Director’s decision. 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 letters dated March 23 and June 18, 2021, and emails dated March 23, June 18, August 3, August 16, and December 1, 2021, and April 21, 2023, the Union requested that the Respondent recognize and bargain with the Union as the exclusive collective-bargaining representative of the unit. By an email dated August 16, 2021, and a position statement dated April 26, 2023, and continuing to date, the Respondent has failed and refused to recognize and bargain with the Union as the exclusive collective-bargaining representative of the unit. We find that the Respondent’s conduct 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 August 16, 2021, to rec- ognize and bargain with the Union as the exclusive col- lective-bargaining representative of the employees in the appropriate unit, the Respondent 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 from failing and refusing to recognize and bargain with the Union, to bargain on request with the Union and, if an understanding is reached, to embody the un- derstanding 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 on the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); accord Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964). Finally, in addition to the customary notice posting remedies, the General Counsel requests the additional remedy that the Respondent mail a notice to each unit employee’s residence. In the absence of any explanation why the notice mailing remedy is warranted here, we deny the General Counsel’s request.4 ORDER The National Labor Relations Board orders that the Respondent, Import Motors II, Inc. dba Audi Concord, Concord, California, and its officers, agents, successors, and assigns, shall 4 In its response to the Notice to Show Cause, the Union requests additional remedies that impose a series of extraordinary and specific conduct requirements on the Respondent. The General Counsel has not joined this request. Because there has been no showing that the Board’s traditional remedies will not suffice to effectuate the policies of the Act, we deny the Union’s request for additional remedies. See, e.g., NP Red Rock, LLC d/b/a Red Rock Casino Resort & Spa, 368 NLRB No. 52, slip op. at 3 fn. 6 (2019); DIRECTV U.S. DIRECTV Holdings LLC, 361 NLRB No. 124, slip op. at 4 (2014). Additionally, the Union seeks a remedy for the Respondent’s alleged refusal to provide information relevant to and necessary for collective bargaining. This allegation was included in a separate case, 32-CA- 281617, which the Region placed in abeyance while the representation case was pending. We decline to order a remedy for an allegation that has never been included in a complaint. IMPORT MOTORS II, INC. DBA AUDI CONCORD 3 1. Cease and desist from (a) Failing and refusing to recognize and bargain with Machinists Automotive Trades District Lodge No. 190, Machinists Local 1173 (the Union) as the exclusive col- lective-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 exclu- sive collective-bargaining representative of the employ- ees in the following appropriate unit concerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agree- ment: All full-time and regular part-time Service Advisors and Service Advisors-internal employed by the Em- ployer at its facility located at 1300 Concord Avenue, Concord, CA 94520; excluding all other employees, confidential employees, office clerical employees, guards, and supervisors as defined by the National La- bor Relations Act. (b) Within 14 days after service by the Region, post at its facility in Concord, California, copies of the attached notice marked “Appendix.”5 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. 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, 5 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notice must be posted within 14 days after service by the Region. If the facility involved in these proceedings is closed or not staffed by a substantial complement of employees due to the Coronavirus Disease 2019 (COVID-19) pan- demic, the notice must be posted within 14 days after the facility reo- pens and a substantial complement of employees have returned to work. If, while closed or not staffed by a substantial complement of employees due to the pandemic, the Respondent is communicating with its employees by electronic means, the notice must also be posted by such electronic means within 14 days after service by the Region. If the notice to be physically posted was posted electronically more than 60 days before physical posting of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” 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 National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforc- ing an Order of the National Labor Relations Board.” and/or other electronic means, if the Respondent custom- arily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. If 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 current em- ployees and former employees employed by the Re- spondent at any time since August 16, 2021. (c) Within 21 days after service by the Region, file with the Regional Director for Region 32 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. July 31, 2023 ______________________________________ Lauren McFerran, Chairman ________________________________________ Marvin E. Kaplan, Member ________________________________________ Gwynne A. Wilcox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TOEMPLOYEES 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. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 WE WILL NOT fail and refuse to recognize and bargain with Machinists Automotive Trades District Lodge No. 190, Machinists Local 1173 (the Union) as the exclusive collective-bargaining representative of our 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 listed above. 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 appropriate bargaining unit: All full-time and regular part-time Service Advisors and Service Advisors-internal employed by us at our facility located at 1300 Concord Avenue, Concord, CA 94520; excluding all other employees, confidential em- ployees, office clerical employees, guards, and supervi- sors as defined by the National Labor Relations Act. IMPORT MOTORS II, INC. DBA AUDI CONCORD The Board’s decision can be found at www.nlrb.gov/case/32-CA-281627 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.