Super Tire Stores

National Labor Relations Board - Board Decisions

Nov 24, 1978

239 N.L.R.B. 452 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Grand Auto, Inc., d/b/a Super Tire Stores and Auto-
motive Teamsters, Chauffeurs and Miscellaneous
Employees, Local Union No. 165, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America. Case 20-CA- 13974
November 24. 1978
DECISION AND ORDER
By CHAIRMAN FANNING AND MEMBERS PENII.I.()
AND TRUI SISDAI.i
Upon a charge filed on July 26. 1978, by Automo-
tive Teamsters, Chauffeurs and Miscellaneous Em-
ployees, Local Union No. 165, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, herein called the Union, and
duly served on Grand Auto, Inc., d/b/a Super Tire
Stores, herein called Respondent, the General Coun-
sel of the National Labor Relations Board, by the
Regional Director for Region 20, issued a complaint
and notice of hearing on August 11, 1978, and an
amendment to complaint on August 29. 1978, against
Respondent, alleging that Respondent had engaged
in, and was engaging in, unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(5)
and (1) and Section 2(6) and (7) of the National La-
bor Relations Act, as amended. Copies of the charge,
complaint, amendment to 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 com-
plaint alleges in substance that on July 6, 1978, fol-
lowing a Board election in Case 20-RC-13888, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commenc-
ing on or about July 19, 1978, and at all times there-
after, Respondent 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 so. On
August 25, 1978, Respondent filed its answer to the
complaint admitting in part and denying in part the
allegations in the complaint. On August 29, 1978,
pursuant to a stipulation of facts entered into by the
parties on the same date, the General Counsel filed
'Official notice is taken of the record in the representation proceeding.
Case 13 RC 13888, 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 Elecrrosvsiems. 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); Inierp'pe Co. v. Penelo, 269 F Supp. 573 ( [)('.Va. 1967);
Folleu Corp., 164 NiLRB 378 (1967). enfd. 397 F.2d 91 (7th ('Ir. 1968): Sec
9(d) of the NL.RA. as amended
an amendment to complaint clarifying the location
of Respondent's place of business. Respondent filed
no answer to the amendment to complaint.
On September 13, 1978, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment and a motion to strike portions
of Respondent's answer.? Subsequently, on Septem-
ber 27. 1978, the Board issued an order transferring
the proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment and motion to strike portions of Re-
spondent's answer should not be granted. Respon-
dent thereafter failed to file 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 for Summary Judgment
In an election held on December 27, 1976, pur-
suant to a Stipulation for Certification Upon Con-
sent Election, two ballots were cast, one of which was
challenged. Following an investigation, the Regional
Director issued a report recommending that a hear-
ing be held to resolve the issues raised by the chal-
lenged ballot. In addition, since the ballot was chal-
lenged on the ground that the employee was not an
eligible voter because he had been transferred out of
the unit before the election, the Regional Director
issued an Order consolidating Case 20-RC-13888
with Case 2(0CA- 12535, as it was alleged in the lat-
ter case that the challenged voter was transferred in
violation of Section 8(a)(3) of the Act. Thereafter, a
hearing was held before an Administrative Law
Judge.
On January 25, 1978, the Administrative Law
Judge issued his decision in Cases 20-CA-12535 and
20-RC--13888, finding that the transfer of the chal-
lenged voter violated Section 8(a)(3) and (1) of the
Act, and recommending that the challenged voter's
ballot be opened and counted. Exceptions to the Ad-
ministrative Law Judge's decision were filed by Re-
spondent and the General Counsel. On June 13,
2 In the motion to strike portiors of Respondent's answer. the (General
Counsel requests that Respondent'" denial of par. 6(a). which alleges that on
June 22. 1978. a majority of Respondent's employees designated the Uniion
as their collective-bargaining representative. as well as Respondent's denial
of par 6(b). which alleges that on July 6. 1978. the t nion was certified by
the Board as the exclusive representative of Respondent's employees, should
be "striken as sham and false" pursuant to the Board's Rules and Regula-
tions, Senes 8. as amended. Sec 102 21 In view of our decision to grant the
General ('ounsel's Motion for Summniry Judgment. we hereby deny the
General ('oiunsel's motion to strike portions If Respondent's answer
452
SUPER TIRE STORES
1978, the Board issued its Decision and Order (Grand
Auto, Inc., d/b/a Super Tire Stores, 236 NLRB 877
(1978) ), adopting, with minor modifications not ap-
plicable herein, the Administrative Law Judge's find-
ings, conclusions, and recommendations, and further
ordering the Regional Director for Region 20 to open
and count the challenged voter's ballot and issue the
appropriate certification. On June 22, 1978, the Re-
gional Director prepared a tally of ballots showing
that of two eligible voters, two cast ballots for and
none against the Union. On July 6, 1978, the Region-
al Director issued a Certification of Representative,
certifying the Union as the exclusive bargaining rep-
resentative of Respondent's employees.
By letter dated July 11, 1978, the Union requested
Respondent to bargain collectively with respect to
wages, hours, and terms and conditions of employ-
ment. By letter dated July 19, 1978, Respondent re-
fused to bargain with the Union, stating that it was
appealing the Board's Decision and Order in 236
NLRB 877, to the United States Court of Appeals for
the Ninth Circuit, and that it would refuse to comply
with the Board's Decision and Order until that deci-
sion was considered by the Ninth Circuit.
In its answer to the complaint in the instant case,
Respondent denied the allegations in the complaint
that "on June 22, 1978, a majority of Respondent's
employees . . . designated the Union as their collec-
tive bargaining representative in an election conduct-
ed by the Board." and that "on July 6, 1978, the
Union was certified by the Board as the exclusive
representative for purposes of collective bargaining
of all employees in the unit described [herein] .... "
However, Respondent admitted the allegation that
"since on or about July 19, 1978, Respondent, by its
officers, agents, and representatives, has refused, and
is refusing to bargain with the Union as the represen-
tative of the employees in the unit described [herein]
.... " Since Respondent has filed no response to
the Notice To Show Cause, we assume that the deni-
als contained in its answer to the complaint in the
instant case are based on its assertion, contained in
its letter to the Union dated July 19, 1978, that it
does not have to comply with the Board's decision as
to the eligibility status of the challenged voter until
such time as the Ninth Circuit reviews the Board's
Decision and Order in 236 NLRB 877.
Under Section 10(g) of the Act, an application to a
court of appeals for review of a Board order under
Section 10(f) does not operate as a stay of the
Board's order unless specifically ordered by the
court. There is no evidence in the instant case that
the Ninth Circuit has specifically ordered a stay of
the Board's Decision and Order in 236 NLRB No. 99
(1978). Thus, "even though the Board's decision ulti-
mately may be reversed, the Respondent must honor
the certification and its duty to bargain is not post-
poned by a pending petition for court review."
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or special
circumstances a respondent in a proceeding alleging
a violation of Section 8(a)(5) is not entitled to reliti-
gate issues which were or could have been litigated in
a prior representation proceeding.4
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding, and Respondent does not offer
to adduce at a hearing any newly discovered or pre-
viously 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 proper-
ly 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
Respondent, a California corporation having a
place of business located at 6140 Watt Avenue, Sac-
ramento County, California, is engaged in the retail
and wholesale sale of automobile tires and related
products. During the past calendar year, in the
course of its operations in California, Respondent
has received gross revenues in excess of $500,000,
and it has purchased and received goods valued in
excess of $50,000 from points 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 luris-
diction herein.
II THE I.ABOR ORGANIZATION INVOI.VED
Automotive Teamsters, Chauffeurs and Miscella-
neous Employees, Local Union No. 165, Internation-
al Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, is a labor
1 'esrtl/le Homes (Corporation, 196 NI.RH 963 .964 (1972). and cases cited
therein at fn 2.
4See Pirtshurgh Plate Gla.s o v. V. , R.B, 313 U.S 146, 162 (1941)1
Rules and Regulations of the Board. Secs. 102.67(f) and 102.69(c).
453
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All employees at the Respondent's Sacramento
County, California, location, located at 6140
Watt Avenue; excluding office clericals, guards
and supervisors as defined in the Act.
2. The certification
On December 27, 1976, a majority of the employ-
ees of Respondent in said unit, in a secret-ballot elec-
tion conducted under the supervision of the Regional
Director for Region 20, designated the Union as their
representative for the purpose of collective bargain-
ing with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on July 6, 1978, 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 July 11, 1978, and at all
times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
or about July 19, 1978, and continuing at all times
thereafter to date, Respondent has refused, and con-
tinues to refuse, to recognize and bargain with the
Union as the exclusive representative for collective
bargaining of all employees in said unit.
Accordingly, we find that Respondent has, since
July 19, 1978, and at all times thereafter, refused to
bargain collectively with the Union as the exclusive
representative of the employees in the appropriate
unit, and that, by such refusal, Respondent has en-
gaged in, and is engaging in, unfair labor practices
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
III, above, occurring in connection with its opera-
tions described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic,
and commerce among the several States and tend to
lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
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 appro-
priate unit will be accorded the services of their se-
lected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate 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; 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
1. Grand Auto, Inc., d/b/a Super Tire Stores, is
an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. Automotive Teamsters, Chauffeurs and Miscel-
laneous Employees, Local Union No. 165, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All employees at the Respondent's Sacramento
County, California, location, located at 6140 Watt
Avenue; excluding office clericals, guards and super-
visors as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining with-
in the meaning of Section 9(b) of the Act.
4. Since July 6, 1978, the above-named labor orga-
nization has been and now is the certified and exclu-
sive representative of all employees in the aforesaid
appropriate unit for the purpose of collective bar-
gaining within the meaning of Section 9(a) of the
Act.
454
SUPER TIRE STORES
5. By refusing on or about July 19, 1978, and at all
times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit, Respondent has en-
gaged in, and is engaging in. unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respondent
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 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 mean-
ing of Section 2(6) and (7) of the Act.
gional Director for Region 20, after being duly
signed by Respondent's representative, shall be post-
ed 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 Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
5 In the event that this Order is enforced by ajudgment 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 Judg-
ment of the United Stales Court of Appeals Enforcing an Order of the
National L abor Relations Board."
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,
Grand Auto, Inc., d/b/a Super Tire Stores, Sacra-
mento, 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 con-
ditions of employment with Automotive Teamsters,
Chauffeurs and Miscellaneous Employees, Local
Union No. 165, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, as the exclusive bargaining representative
of its employees in the following appropriate unit:
All employees at the Respondent's Sacramento
County, California, location, located at 6140
Watt Avenue; excluding office clericals, guards
and supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise 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 under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its store located at 6140 Watt Avenue
copies of the attached notice marked "Appendix." 5
Copies of said notice, on forms provided by the Re-
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 Auto-
motive Teamsters, Chauffeurs and Miscella-
neous Employees, Local Union No. 165, Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America as the
exclusive representative of the employees in the
bargaining unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
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 de-
scribed below, with respect to rates of pay, wag-
es, 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 employees at the Respondent's Sacra-
mento County, California, location, located at
6140 Watt Avenue; excluding office clericals,
guards and supervisors as defined in the Act.
GRAND AUTO. INC. d/b/a SUPER TIRE
STORES
455