Fairfield Ford

National Labor Relations Board - Board Decisions

Sep 5, 2003

340 N.L.R.B. 9 (N.L.R.B. 2003)

NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the E x­
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.
Fairfield Ford and District Lodge 34, International
Association of Machinists and Aerospace Work­
ers, AFL–CIO. Case 9–CA–40308
September 5, 2003
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND WALSH
This is a refusal-to-bargain case in which the Respon­
dent is contesting the Union’s certification as bargaining
representative in the underlying representation proceed­
ing. Pursuant to a charge and amended charged filed on
June 12 and July 10, 2003, respectively, the General
Counsel issued the complaint on July 14, 2003, alleging
that the Respondent has violated Section 8(a)(5) and (1)
of the Act by refusing the Union’s request to bargain
following the Union’s certification in Case 9–RC–17713.
(Official notice is taken of the “record” in the representa­
tion 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 denying in part the allegations in
the complaint.
On August 5, 2003, the General Counsel filed a Mo­
tion for Summary Judgment. On August 12, 2003, 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 did not file a
response.
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’s answer admits that Respondent has
failed and refused to recognize and bargain with the Un­
ion, but denies the appropriateness of the unit and con-
tests the validity of the certification 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.1
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation,
has been engaged in the retail sale and service of auto-
mobiles at its Fairfield, Ohio facility.
During the 12-month period preceding issuance of the
complaint, the Respondent, in conducting its operations
described above, derived gross revenues in excess of
$500,000 and purchased and received at its Fairfield,
Ohio facility goods valued in excess of $50,000 directly
from points outside the State of Ohio.
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 election held November 26, 2002, the
Union was certified on April 22, 2003, as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit:
All full-time and regular part-time automotive techni­
cians (mechanics), employed by [Respondent] at its
Fairfield, Ohio facility, excluding service advisors, the
warranty clerk, the dispatcher, body shop employees,
salesmen, lot employees, parts department employees,
office clerical employees, managerial employees, all
other employees, and all professional employees,
guards and supervisors as defined in the Act.
The Union continues to be the exclusive representative un­
der Section 9(a) of the Act.
B. Refusal to Bargain
About April 28, 2003, and renewed on May 22, 2003,
the Union, in writing, requested the Respondent to rec­
ognize and bargain with it, and, since about June 17,
1 We therefore deny the Respondent’s request that the complaint be
dismissed and that Respondent be awarded its costs and reasonable
attorneys fees.
Members Schaumber and Walsh did not participate in the Bo ard’s
May 21, 2003 Order denying the Respondent’s request for review of
the Regional Director’s Second Supplemental Decision and Certifica­
tion of Representative. However, they did participate in the Board’s
previous, February 5, 2003 Order denying the Respondent’s request for
review of the Regional Director’s Decision and Direction of Election.
They agree that the Respondent has not raised any new matters or spe­
cial circumstances warranting a hearing in this proceeding or reconsid­
eration of the decision in the representation proceeding, and that sum­
mary judgment is appropriate.
340 NLRB No. 9
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2003, the Respondent, by letter, has failed and refused to
do so. We find that the Respondent has thereby unlaw­
fully failed and refused to bargain in violation of Section
8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By failing and refusing on and after June 17, 2003, to
bargain with the Union as the exclusive collective-
bargaining representative of employees in the appropriate
unit, the Respondent has engaged in unfair labor prac­
tices 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, to bargain on request with the Union, 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 the law, we shall construe the initial period of the cer­
tification 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, Fairfield Ford, Fairfield, Ohio, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with District Lodge
34, International Association of Machinists and Aero­
space Workers, AFL–CIO, as the exclusive 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
representative of the employees in the following appro­
priate unit on terms and conditions of employment, and if
an understanding is reached, embody the understanding
in a signed agreement:
All full-time and regular part-time automotive techni­
cians (mechanics), employed by [Respondent] at its
Fairfield, Ohio facility, exc luding service advisors, the
warranty clerk, the dispatcher, body shop employees,
salesmen, lot employees, parts department employees,
office clerical employees, managerial employees, all
other employees, and all professional employees,
guards and supervis ors as defined in the Act.
(b) Within 14 days after service by the Region, post at
its facility in Fairfield, Ohio, copies of the attached no­
tice marked “Appendix.”2 Copies of the notice, on forms
provided by the Regional Director for Region 9, after
being signed by the Respondent’s authorized representa­
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon­
dent 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 Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since June 17, 2003.
(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.
Dated, Washington, D.C. September 5, 2003
Wilma B. Liebman, Member
Peter C. Schaumber, Member
Dennis P. Walsh, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
2 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.”
FAIRFIELD FORD 3
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 benefit
and protection
Choose not to engage in any of these protected ac­
tivities.
WE WILL NOT refuse to bargain with District Lodge 34,
International Association of Machinists and Aerospace
Workers, AFL–CIO, as the exclusive representative of
the 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
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 bar-
gaining unit:
All full-time and regular part-time automotive techni­
cians (mechanics), employed by us at our Fairfield,
Ohio facility, excluding service advisors, the warranty
clerk, the dispatcher, body shop employees, salesmen,
lot employees, parts department employees, office
clerical employees, managerial employees, all other
employees, and all professional employees, guards and
supervisors as defined in the Act.
FAIRFIELD FORD