Bravos Oldsmobile, Inc.

National Labor Relations Board - Board DecisionsMar 4, 1981

254 N.L.R.B. 1056 (N.L.R.B. 1981)

1osci Bnrvos & Aerospace AFGCIO. 13- IJpon by Aiitomobile & Workers, AI7L-CIO, selved for 19B0, pr,stices 8(a)(5) 2(6) Copies represen- ta1:ive so. transferring Jt.dgment not - I taken raord Cam 90:s. 102.69(g) as LTV Elecrmsystems (1967), F.2d Bewrnge I51 (1167). F.2d Inrerfype (30. v. Penello, ESupp. 573 (D.C. Yo. 1967): Follerr Corp., 164 39" F.2d Cir. Sec. 9(d) ns 8(a)(5) ~roceeding.~ prior& 440 Rrrsburgh Plore Gloss N.LR.B., U.S. 146. Rule Secs. 102.67(f) 102.69(c). DECISIONS OF NATIONAL LABOR RELATIONS BOARD Oldsmobile, Inc. and Automobile Mechanics Local 701, International Association of Machin- ists Workers, Case CA-19687 March 4, 198 1 DECISION AND ORDER a charge filed on March 17, 1980, Mechanics Local 701, International Association of Machinists Aerospace herein called the Union, and duly on Bravos Oldsmobile, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director Region 13, issued a complaint on March 27, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor affecting commerce within the meaning of Section and (1) and Section and (7) of the National Labor Relations Act, as amended. of the charge and complaint and notice of hearing before an administrative law judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the camplaint alleges in substance that on October 24, 1979, following a Boardelection in Cases 13-RC- 15 159 and 13-RM-1277, the Union was duly certi- fied as the exclusive collective-bargaining of Respondent's employees in the unit found appropriate;' and that, commencing on or about January 24, 1980, and at all times thereafter, Re- spondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do On April 2, 1980, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On July 14, 1980, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on July 18, 1980, the Board issued an order the proceed- ing to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary should not be granted. Respondent did file a response to the Notice To Show Cause. Upon the entire record in this proceeding, the Board makes the following: Official notice is of the in the represenation proceeding, 13-RC-15159 and 13-RM-1277, as the term "record" is defined in 102.68 and of the Board's Rules and Regulations, Series 8, amended. See Inc., 166 NLRB 938 enfd. 683 (4th Cir. 1968); Golden Age Co.. 167 NLRB enfd. 415 26 (5th Cir. 1969); 269 NLRB 378 (1967). enfd. 91 (7th 1968); of the NLRA, amended. 2!4 NLRB No. 135 Ruling on the Motion for Summary Judgment On August 7, 1979, the Regional Director for Region 13 issued a Decision and Direction of Elec- tion. Thereafter, Respondent filed a request for stay of the election and request for review. On September 11, 1979, the Board issued an order granting Respondent's request for review only with respect to the issue of the supervisory status of Re- spondent's service writer. However, the Board was of the opinion that this issue would best be re- solved through the challenge procedure. The Board denied the request for review in all other re- spects." An election was conducted on September 14, 1979, the tally showed two votes for, and none against, the Union, with two challenged ballots. Following an investigation, the Regional Director, on October 24, 1979, issued a Supplemental Deci- sion on Challenged Ballots and Certification of Representative certifying the Union as the exclu- sive representative of all Respondent's employees in the appropriate unit. On November 5, 1979, Re- spondent filed a request for review of the Regional Director's Supplemental Decision. On November 27, 1979, the Board issued an order denying Re- spondent's request for review. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- leging a violation of Section is not entitled to relitigate issues which were or could have been litigated in a prior representation All issues raised by Respondent in this proceed- ing were or could have been litigated in the representation proceeding, and Respondent does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: I. THE BUSINESS OF RESPONDENT Respondent is an Illinois corporation with an office and place of business at East Main Member Jenkins would have granted review and stayed the election and so indicated in the order. See Co. v. 313 162 (1941); and Regulations of the Board, and 3811 ssles ma1:erials itn 2(6) will jui-isdiction 11. thereafler refusal, 8(a)(5) (1) & AFL-CIO, Se1:tion 2(5) 111, oper- 111. ations ob- unit within 9(b) 440 emplo:fees, September secret- Regionill br~rgaining Unic in 114, exclusiire 9(a) and Commenci.>g bargain ex- zlusive col1ec:tive-bargaining Com- structing 8(a)(5) C d/b/a (1962), F.2d 1964), cert. Burnetf (1964), F.2d (10th 2(6) BRAVOS OLDSMOBILE, INC. 1057 Street, Barrington, Illinois. It is engaged in the retail and service of new and used auto- mobiles During the past year, a representative period, Respondent purchased and received goods and valued in excess of $50,000 directly from points outside the State of Illinois. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material herein, employer engaged in commerce within the meaning of Section and (7) of the Act, and that it effectuate the policies of the Act to assert herein. 'THE LABOR ORGANIZATION INVOLVED Automobile Mechanics Local 701, International Association of Machinists Aerospace Workers, is a labor organization within the mean- ing of of the Act. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent consti- tute a appropriate for collective-bargaining purposes the meaning of Section of the Act: All mechanics and apprentices employed by the Employer at its facility currently located at East Main Street, Barrington, Illinois, but excluding all parts department employees, get-ready employees, salesmen, office clerical professional employees, guards and supervisors as defined in the Act. 2. The certification On 14, 1979, a majority of the em- ployees of Respondent in said unit, in a ballot election conducted under the supervision of the Director for Region 13, designated the Union as their representative for the purpose of collective with Respondent. The was certified as the collective-bar- gaining representative of the employees in said unit on October 1979, and the Union continues to be such representative within the meaning of Section of the Act. B. The Request To Bargain Respondent's Refusal on or about December 6, 1979, and at all times thereafter, the Union has requested Re- spondent to collectively with it as the representative of all :he employees in the above-described unit. mencing on or about January 24, 1980, and con- tinuing at all times to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive repre- sentative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since January 24, 1980, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section and of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section above, occurring in connection with its described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and commerce and-the free f low of com- merce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company Lamar Hotel, 140 NLRB 226, 229 enfd. 328 600 (5th Cir. denied 379 U.S. 817; Construction Company, 149 NLRB 1419, 1421 enfd. 350 57 Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: 1. Bravos Oldsmobile, Inc., is an employer en- gaged in commerce within the meaning of Section and (7) of the Act. l(d8 & 2(5) 440 purposes 9(b) ar~d resaid 9(a) 8(a)(5) Act. anld ex.lployees thtm en- gai3ed 8(a)(1) '7. 2(6) Ibrsuant lqc) Brr~vos of- fict:rs, (,&) ratto t,le 440 (b) - ZIMMERMAN, 8(a)(5) 102.67(f), relitigat- DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Automobile Mechanics Local 701, Internation- al Association of Machinists Aerospace Workers, A FL-CIO, is a labor organization within the mean- ing of Section of the Act. 3. All mechanics and apprentices employed by Respondent at its facility currently located at East Main Street, Barrington, Illinois, but exclud- ing all parts department employees, get-ready em- ployees, salesmen, office clerical employees, profes- sional employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the of collective bargaining within the mean- ing of Section of the Act. 4. Since October 24, 1979, the above-named labor organization has been and now is the certified exclusive representative of all employees in the af appropriate unit for the purpose of collec- tive bargaining within the meaning of Section of the Act. 5. By refusing on or about January 24, 1980, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclu- sive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section of the 6. By the aforesaid refusal to bargain, Respon- dent has interfered with, restrained, and coerced, is interfering with, restraining, and coercing, in the exercise of the rights guaranteed in Section 7 of the Act, and thereby has in and is engaging in unfair labor practices within the meaning of Section of the Act. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section and (7) of the Act. ORDER to Section of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Oldsmobile, Inc., Barrington, Illinois, its agents, successors, and assigns, shall: 1. Cease and desist from: Refusing to bargain collectively concerning of pay, wages, hours, and other terms and conditions of employment with Automobile Me- chanics Local 701, International Association of Ma- chinists & Aerospace Workers, AFL-CIO, as the exclusive bargaining representative of its employees in following appropriate unit: All mechanics and apprentices employed by the Employer at its facility currently located at East Main Street, Bamngton, Illinois, but excluding all parts department employees, get-ready employees, salesmen, office clerical employees, professional employees, guards and supervisors as defined in the Act. In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such under- standing in a signed agreement. (b) Post at its Barrington, Illinois, facility copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. MEMBER specially concurring: I join in finding that Respondent violated Sec- tion of the Act by refusing to bargain col- lectively with the certified representative of certain of its employees. The facts supporting that determi- nation essentially are admitted. Although I did not participate in the underlying representation case, and have not addressed the issue de now,unlike Member Jenkins I nevertheless consider myself bound to grant summary judgment without regard to the merits of the issue which Re- spondent now attempts to relitigate. The Board's Rules and Regulations, Section provide, in pertinent part: Failure to request review [in a representation case] shall preclude such parties from ing, in any related subsequent unfair labor In the event that 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." preceding. reli- t igat i~~g issue; Clourt. Gloss judicata. 1il:igate reliti- that Memticr thi~t ~u le s 0. ''[ahere Deci- Colum. MEMBEI~ would deciFis 1 deci- sis. N m c ~ POSED WlLL office 1059 BRAVOS OLDSMOBILE, INC. practice proceeding, any issue which was, o r could have been, raised in the representation Denial of a request for review shall constitute an affirmance of the regional director's action which shall also preclude any such issues in any related subse- quent unfair labor practices proceeding. The Board's refusal to reconsider unit determina- tion has long ago been approved by the Su- preme Pittsburgh Plate Co. v. N.L.R.B.,313 U.S. 146, 162 (1941). By this rule against relitigation, the Board ap- plies to it 3 own proceedings the ancient doctrine of res That doctrine dictates, quite simply, that once a litigant has had a full and fair opportu- nity to an issue, and has had that issue re- solved, it shall thereafter be precluded from gating issue in future proceedings. Jenkins in his dissent does not argue that the appropriateness of the certified unit was not litigated in the underlying representation pro- ceeding. Nor does his dissent purport to quarrel with the propriety of our rule barring relitigation in unfair labor practice proceedings of issues that have been determined in underlying representation proceedings. Rather, he simply chooses not to apply rule. The mischief lurking in such selective application of our is far greater than the damage that might result if, indeed, the unit issue was improper- ly decided in this case. As Justice William Douglas said: will be no equal justice under law if a . . . rule is applied in the morning but not in the afternoon." Douglas, "Stare sis," 49 L. Rev. 735, 736 (1949). Therefore, without reaching the substance of the issues ad- dressed by the dissent, I concur in finding a viola- tion hen:. JENKINS, dissenting: I deny the General Counsel's Motion for Summary Judgment inasmuch as I would have granted the Employer's request for review in the underlying representation proceeding and stayed the election. Contrary to Member Zimmerman, I do not think my dissent breaches the store principle. I dis- sented in the underlying representation proceeding, my dissent does not change the result but preserves it in exactly its prior form, a 2 to decision, and not to dissent might mislead readers into thinking I had changed my views. The absence, not the pres- ence, of a dissent from me would offend stare APPENDIX To EMPLOYEES BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Automobile Mechanics Local 701, Inter- national Association of Machinists & Aero- space Workers, AFL-CIO, as the exclusive representative of the employees in the bargain- ing unit described below. WE WlLL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive represen- tative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All mechanics and apprentices employed by the Employer at its facility currently lo- cated at 440 East Main Street, Barrington, Illinois, but excluding all parts department employees, get-ready employees, salesmen, clerical employees, professional em- ployees, guards and supervisors as defined in the Act.