Dollar Rent-A-Car

National Labor Relations Board - Board Decisions

Aug 4, 1980

250 N.L.R.B. 1361 (N.L.R.B. 1980)

DOLLAR RENT-A-CAR
M.H.T. Corporation, d/b/a Dollar Rent-A-Car and
Teamsters Automotive Workers Union Local
576, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America. Case 32-CA-2622
August 4, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
Upon a charge filed on April 2, 1980, by Team-
sters Automotive Workers Union Local 576, Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein
called the Union, and duly served on M.H.T. Cor-
poration, d/b/a Dollar Rent-A-Car, herein called
Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director
for Region 32, issued a complaint on April 11,
1980, against Respondent, alleging that Respondent
had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning
of Section 8(a)(5) and (1) and Section 2(6) and (7)
of the National Labor Relations Act, as amended.
Copies 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
complaint alleges in substance that on February 28,
1980, following a Board election in Case 32-RC-
841, the Union was duly certified as the exclusive
collective-bargaining representative of Respond-
ent's employees in the unit found appropriate;' and
that, commencing on or about March 13, 1980, and
at all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining repre-
sentative, although the Union has requested and is
requesting it to do so. On May 5, 1980, Respondent
filed its answer to the complaint admitting in part,
and denying in part, the allegations in the com-
plaint.
On May 22, 1980, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment, which included a motion to strike
portions of Respondent's answer. Subsequently, on
May 30, 1980, the Board issued an order transfer-
ring the proceeding to the Board and a Notice To
Show Cause why the General Counsel's Motion
Official notice is taken of the record in the representation proceed-
ing, Case 32-RC-841, as the term "record" is defined in Secs 102.68 and
102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See
LTV Electrosystems. Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th
Cir. 1968): Golden Age Beverage Co.. 167 NLRB 151 (1967), enfd. 415
F.2d 26 (5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp. 373
(D.C.Va. 1967); Follett Corp.. 164 NLRB 378 (1967), enfd 397 F.2d 91
(7th Cir. 1968); Sec 9(d) of the NLRA, as amended.
250 NLRB No. 168
for Summary Judgment should not be granted. Re-
spondent thereafter filed a response to Notice To
Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion to Strike Portions of
Respondent's Answer
Paragraph 2, subparagraph (b), of the complaint
alleges that during the past 12 months, in the
course and conduct of its business operations, Re-
spondent derived gross revenues in excess of
$500,000. Pargraph 2(c) of the complaint alleges
that during the same period Respondent, in the
course and conduct of its business operations, pur-
chased and received goods or services valued in
excess of $50,000 which originated outside the
State of California. In the Stipulation for Certifica-
tion Upon Consent Election, which is part of the
record in Case 32-RC-841, Respondent stipulated
to the facts alleged in paragraph 2, subparagraphs
(b) and (c), of the complaint. In these circum-
stances, we find that Respondent's denial of para-
graph 2, subparagraphs (b) and (c), is frivolous.
Accordingly, we grant the General Counsel's
motion to strike that portion of Respondent's
answer which denies paragraph 2, subparagraphs
(b) and (c).
Paragraph 8 of the complaint alleges that, since
on or about March 5, 1980, and continuing to date,
the Union by letter has requested and is requesting
Respondent to bargain collectively with respect to
rates of pay, wages, hours of employment, and
other terms and conditions of employment as the
exclusive collective-bargaining representative of all
of the employees in the unit. Paragraph 9 of the
complaint alleges that, since on or about March 13,
1980, Respondent has failed and refused, and con-
tinues to fail and refuse, to recognize or bargain
with the Union as the exclusive collective-bargain-
ing representative of the employees in the unit. Re-
spondent in its answer denies paragraphs 8 and 9.
Attached to and made a part of the General Coun-
sel's Motion for Summary Judgment are copies of a
letter, dated March 5, 1980, and a signed return re-
ceipt from the United States Postal Service. The
letter purports to be a request by the Union for
bargaining sent to Respondent by certified mail.
Also attached to and made a part of the General
Counsel's Motion for Summary Judgment is a copy
of a letter, dated March 13, 1980, purporting to be
from Respondent's counsel refusing and declining
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union's request for negotiations. In its response
to the General Counsel's motion, Respondent does
not controvert the contents or receipt of the March
5 letter or demonstrate any grounds for questioning
its authenticity, nor does Respondent deny that it
sent the March 13 letter to the Union. In light of
these facts, we find that the March 5, 1980, letter
requesting bargaining was sent to Respondent, that
Respondent in turn sent the March 13, 1980, letter
to the Union, and that Respondent's denial of para-
graphs 8 and 9 of the complaint is therefore frivo-
lous. Accordingly, we grant the General Counsel's
motion to strike that portion of Respondent's
answer which denies paragraphs 8 and 9 of the
complaint. 2
Ruling on the Motion for Summary Judgment
Respondent's answer, in substance, attacks the
validity of the Union's certification on the basis of
its objections to the election in the underlying rep-
resentation proceeding. The General Counsel
argues that all material issues have been previously
decided. We agree with the General Counsel.
Our review of the record herein, including the
record in Case 32-RC-841, reveals that on October
15, 1979, pursuant to a Stipulation for Certification
Upon Consent Election, an election was held
among the employees in the stipulated unit. The
tally of ballots showed that of approximately four
eligible voters, four cast valid ballots for, and none
against, the Union; there were two challenged bal-
lots, an insufficient number to affect the results of
the election. Respondent filed timely objections to
the election. After conducting an investigation of
Respondent's objections, the Regional Director on
November 27, 1979, issued his report recommend-
ing that the objections to the election be overruled.
Thereafter, Respondent filed exceptions to the Re-
gional Director's recommendation that its objec-
tions be overruled. On February 28, 1980, the
Board adopted the Regional Director's recommen-
dation and certified the Union as the exclusive bar-
gaining representative of the employees in the stip-
ulated unit.
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 8(a)(5) is not entitled
to relitigate issues which were or could have been
litigated in a prior representation proceeding.3
2 Gooch Packing Co.. Inc., 188 NLRB 890, fn. 2 (1971), remanded on
other grounds 457 F.2d 361 (5th Cir 1972): American Nursing Home and
Convalescent Center, Irc., 188 NLRB 961, 962, fn. 4 (1971), enfd 459 F.2d
26 (4th Cir. 1972).
See Pittsburgh Platerr Glaro Co. v. 'L.RRB. 313 US 146. 162 (19411;
Rules and Regulations of the Board, Secs 102.67(f) and 102.6
9(c).
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
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:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Respondent, M.H.T. Corporation d/b/a
Dollar Rent-A-Car, is a California corporation en-
gaged in the business of renting automobiles to the
general public in San Jose, California. During the
12 months preceding the issuance of the complaint,
Respondent, in the course and conduct of its busi-
ness operations, derived gross revenues in excess of
$500,000 and purchased and received goods and
services valued in excess of $50,000 from outside
the State of California.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and
that it will effectuate the policies of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters Automotive Workers Union Local
576, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, is a labor organization within the meaning of
Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time garage and
maintenance employees and car shuttlers em-
ployed by Respondent at its San Jose, Califor-
nia facility; excluding all other employees,
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DOLLAR RENT-A-CAR
office clerical employees, guards and supervi-
sors as defined in the Act.
2. The certification
On October 15, 1979, a majority of the employ-
ees of Respondent in said unit, in a secret-ballot
election conducted under the supervision of the
Regional Director for Region 32, designated the
Union as their representative for the purpose of
collective-bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on February 28, 1980, and the Union continues to
be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about March 5, 1980, and at
all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about March 13, 1980, and continu-
ing at all times thereafter to date, Respondent has
refused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective-bargaining of all employees in
said unit.
Accordingly, we find that Respondent has, since
March 13, 1980, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
II, above, occurring in connection with its oper-
ations 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 ob-
structing commerce and the free flow 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 8(a)(5) 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 d/b/a
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817
(1964); Burnett Construction Company, 149 NLRB
1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir.
1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
I. M.H.T. Corporation, d/b/a Dollar Rent-A-
Car is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Teamsters Automotive Workers Union Local
576, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All full-time and regular part-time garage and
maintenance employees and car shuttlers employed
by Respondent at its San Jose, California, facility;
excluding all other employees, office clerical em-
ployees, guards, and supervisors as defined in the
Act, constitute a unit appropriate for the purposes
of collective-bargaining within the meaning of Sec-
tion 9(b) of the Act.
4. Since February 28, 1980, the above-named
labor organization has been and now is the certified
and exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive-bargaining within the meaning of Section 9(a)
of the Act.
5. By refusing on or about March 13, 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 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
to them in Section 7 of the Act, and thereby has
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
M.H.T. Corporation, d/b/a Dollar Rent-A-Car,
San Jose, California, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Teamsters Auto-
motive Workers Union Local 576, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, as the exclusive bar-
gaining representative of its employees in the fol-
lowing appropriate unit:
All full-time and regular part-time garage and
maintenance employees and car shuttlers em-
ployed by Respondent at its San Jose, Califor-
nia, facility; excluding all other employees,
office clerical employees, guards and supervi-
sors as defined in the Act.
(b) 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 San Jose, California, facility copies
of the attached notice marked "Appendix." 4
Copies of said notice, on forms provided by the
Regional Director for Region 32, after being duly
4 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."
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 Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 32,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with Teamsters Automotive Workers Union
Local 576, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive repre-
sentative of the employees in the bargaining
unit described below.
WE WILL 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 repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All full-time and regular part-time garage
and maintenance employees and car shut-
tlers employed by us at our San Jose, Cali-
fornia, facility; excluding all other employ-
ees, office clerical employees, guards and su-
pervisors as defined in the Act.
M.H.T. CORPORATION D/B/A DOLLAR
RENT-A-CAR
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