Action Automotive, Inc.

National Labor Relations Board - Board Decisions

Jun 24, 1982

262 N.L.R.B. 423 (N.L.R.B. 1982)

ACTION AUTOMOTIVE, INC.
Action Automotive, Inc. and Retail Store Employees
Union, Local 40, United Food and Commercial
Workers International Union, AFL-CIO-CLC.
Case 7-CA-20341
June 24, 1982
DECISION AND ORDER
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
Upon a charge filed on February 22, 1982, by
Retail Store Employees Union, Local 40, United
Food and Commercial Workers International
Union, AFL-CIO-CLC, herein called the Union,
and duly served on Action Automotive, Inc.,
herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Re-
gional Director for Region 7, issued a complaint on
March 4, 1982, 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 pro-
ceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on January 11,
1982, in Unit A, as described below, and on Janu-
ary 26, 1982, in Unit B, as described below, follow-
ing a Board election in Case 7-RC-16322, the
Union was duly certified as the exclusive collec-
tive-bargaining representative of Respondent's em-
ployees in the units found appropriate;' and that,
commencing on or about February 8, 1982, 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 March 12, 1982, Re-
spondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint.
On March 19, 1982, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on March 30,
1982, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Official notice is taken of the rerord in the representation proceed-
ing, Case 7-RC-16322, as the term "record" is defined in Sees. 102.68
and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended.
See L7V Electrosystemx 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. 573
(D.C.Va. 1967); Follett Corpa, 164 NLRB 378 (1967), enfd. 397 F.2d 91
(7th Cir. 1968); Sec. 9(d) of the NLRA, as amended.
262 NLRB No. 57
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
thereafter filed a response to the 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 its answer to the complaint, Respondent
admits the Union's request and its refusal to bar-
gain, but denies that the Union was selected by a
majority of the employees in either bargaining unit
or that the Union is the exclusive collective-bar-
gaining representative of the employees in either
unit described below.
Review of the record herein, including the
record in Case 7-RC-16322, reveals that on March
31, 1981, the Union filed a petition seeking to rep-
resent certain employees of Respondent. The par-
ties executed a Stipulation for Certification Upon
Consent Election which was approved on April 28,
1981.
On May 29, 1981, a secret-ballot election was
conducted among Respondent's employees in the
following appropriate units:
UNIT A
All store and warehouse employees employed
by the Employer at its nine stores (G-4273 Co-
runna Rd., Flint, MI; 3029 S. Dort Hwy.,
Burton, MI; 3097 N. Genesee Rd., Flint, MI;
G-2499 Flushing Rd., Flint, MI; 1275 S.
Center Rd., Burton, MI; G-5016 Clio Rd.,
Flint, MI; 302 S. Leroy, Fenton, MI; 514 W.
Atherton, Flint, MI; G-4232 S. Saginaw St.,
Burton, MI); but excluding all office clerical
employees, store managers, assistant store man-
agers, guards and all other supervisors as de-
fined in the Act.
UNIT B
All office clerical employees employed by the
Employer at its G-4273 Corunna Road, Flint,
Michigan, facility; but excluding all store and
warehouse employees, store managers, assist-
ant store managers, guards, supervisors as de-
fined in the Act and all other employees.
In Unit A, the tally was 20 for, and 18 against,
the Union and there was I challenged ballot.2 In
= The challenge to one of the ballots in Unit B was based on a conten-
tion that the employee was mistakenly Included on the Unit B eligibility
Continued
423
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Unit B, the tally was four for, and three against,
the Union, and there were five challenged ballots.
Thereafter, a hearing on the challenged ballots was
held and on August 12, 1981, the Hearing Officer
issued his report which recommended that, in Unit
A, the challenge to the ballot be sustained and, in
Unit B, that the challenges to three ballots be over-
ruled, the challenge to one ballot be sustained, and,
as to the final challenged ballot, the employee was
not eligible to vote in Unit B, but his ballot could
be transferred to Unit A where that employee is
eligible to vote. Respondent and the Union filed
exceptions to the report. On January 11, 1982, the
Board issued a Decision, Direction, and Certifica-
tion of Representative s wherein it adopted the
Hearing Officer's recommendations4 but found it
unnecessary to decide whether the ballot cast in
Unit B could be transferred to Unit A since it
would no longer be determinative in Unit A, the
only other challenge in that unit having been sus-
tained. Thus, on January 11, 1982, the Union was
certified as the exclusive representative of all the
employees described in Unit A, and on January 26,
1982, after the Regional Director for Region 7, as
directed by the Board, opened and counted the
overruled challenged ballots in Unit B, the Union
was certified as the exclusive representative for all
employees described in Unit B.
In support of its "Motion in Opposition to the
General Counsel's Motion for Summary Judg-
ment," Respondent resubmitted its exceptions to
the Hearing Officer's report and recommendations
in Case 7-RC-16322.
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.s
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
list, that the employee is eligible to vote in Unit A, and therefore the
ballot should be transferred to Unit A. Accordingly, had the ballot from
Unit B been transferred to Unit A, the one challenged ballot in Unit A
could have been determinative.
' Not included in bound volumes of Board Decisions.
4 In addition to the Hearing Officer's finding that Diane Sabo, the wife
of the president and an owner of the Employer, did not share a commu-
nity of interest with employees in Unit B, Members Jenkins and Zimmer-
man found that the evidence also established that she enjoved special
privileges. Member Hunter would have sustained the challenge to Sabo's
ballot solely on the fact that she enjoyed special privileges.
s See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
decision made in the representaion 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
At all times material herein, Respondent, a cor-
poration organized and existing by virtue of the
laws of the State of Michigan, with its principal
place of business located in Flint, Michigan, has
been engaged in the retail sale of automotive parts
and accessories and related products. During the
year ending December 31, 1981, which period is
representative of its operations during all times ma-
terial hereto, Respondent, in the course and con-
duct of its business operations, had gross revenues
in excess of $500,000, and had delivered to its
Michigan places of business goods and materials
valued in excess of $50,000, of which goods and
materials valued in excess of $50,000 were trans-
ported and delivered to its places of business in
Michigan directly from points located outside the
State of Michigan.
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.
11. THE LABOR ORGANIZATION INVOLVED
Retail Store Employees Union, Local 40, United
Food and Commercial Workers International
Union, AFL-CIO-CLC, is a labor organization
within the meaning of Section 2(5) of the Act.
II1. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The units
The following employees of Respondent consti-
tute units appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the
Act:
UNIT A
All store and warehouse employees employed
by the Employer at its nine stores (G-4273 Co-
runna Rd., Flint, MI; 3029 S. Dort Hwy.,
Burton, MI; 3097 N. Genesee Rd., Flint, MI;
G-2499 Flushing Rd., Flint, MI; 1275 S.
424
ACTION AUTOMOTIVE, INC.
Center Rd., Burton, MI; G-5016 Clio Rd.,
Flint, MI; 302 S. Leroy, Fenton, MI; 514 W.
Atherton, Flint, MI; G-4232 S. Saginaw St.,
Burton, MI); but excluding all office clerical
employees, store managers, assistant store man-
agers, guards and all other supervisors as de-
fined in the Act.
UNIT B
All office clerical employees employed by the
Employer at its G-4273 Corunna Road, Flint,
Michigan, facility; but excluding all store and
warehouse employees, store managers, assist-
ant store managers, guards, supervisors as de-
fined in the Act and all other employees.
2. The certification
On May 29, 1981, a majority of the employees of
Respondent in said units, in a secret-ballot election
conducted under the supervision of the Regional
Director for Region 7, 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 Unit A
on January 11, 1982, and in Unit B on January 26,
1982, and the Union continues to be such exclusive
representative within the meaning of Section 9(a)
of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about January 26, 1982, 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 units.
Commencing on or about February 8, 1982, and
continuing at all times thereafter to date, Respond-
ent has refused, and continues to refuse, to recog-
nize and bargain with the Union as the exclusive
representative for collective bargaining of all em-
ployees in said units.
Accordingly, we find that Respondent has, since
February 8, 1982, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate units, and that, by such refusal, Respond-
ent has engaged 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 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 units and, if an understanding is
reached, embody such understanding in a signed
agreement.
In order to insure that the employees in the ap-
propriate units will be accorded the services of
their selected bargaining agent for the period pro-
vided by law, we shall construe the initial period of
certification as beginning on the date Respondent
commences to bargain in good faith with the
Union as the recognized bargaining representative
in the appropriate units. See Mar-Jac Poultry Com-
pany, Inc., 136 NLRB 785 (1962); Commerce Com-
pany 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
i. Action Automotive, Inc., is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Retail Store Employees Union, Local 40,
United Food and Commercial Workers Internation-
al Union, AFL-CIO-CLC, is a labor organization
within the meaning of Section 2(5) of the Act.
3. The following employees constitute units ap-
propriate for collective-bargaining purposes within
the meaning of Section 9(b) of the Act:
UNIT A
All store and warehouse employees employed
by the Employer at its nine stores (G-4273 Co-
runna Rd., Flint, MI; 3029 S. Dort Hwy.,
Burton, MI; 3097 N. Genesee Rd., Flint, MI;
G-2499 Flushing Rd., Flint, MI; 1275 S.
Center Rd., Burton, MI; G-5016 Clio Rd.,
Flint, MI; 302 S. Leroy, Fenton, MI; 514 W.
Atherton, Flint, MI; G4232 S. Saginaw St.,
Burton, MI); but excluding all office clerical
425
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, store managers, assistant store man-
agers, guards and all other supervisors as de-
fined in the Act.
UNIT B
All office clerical employees employed by the
Employer at its G-4273 Corunna Road, Flint,
Michigan, facility; but excluding all store and
warehouse employees, store managers, assist-
ant store managers, guards, supervisors as de-
fined in the Act and all other employees.
4. Since January 11, 1982, in Unit A and January
26, 1982, in Unit B, the above-named labor organi-
zation has been and now is the certified and exclu-
sive representative of all employees in the aforesaid
appropriate units for the purpose of collective bar-
gaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about February 8, 1982, 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 units, 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
them in Section 7 of the Act, and thereby has en-
gaged 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,
Action Automotive, Inc., Flint, Michigan, its offi-
cers, 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 Retail Store Em-
ployees Union, Local 40, United Food and Com-
mercial Workers International Union, AFL-CIO-
CLC, as the exclusive bargaining representative of
its employees in the following appropriate units:
UNIT A
All store and warehouse employees employed
by the Employer at its nine stores (G-4273 Co-
runna Rd., Flint, MI; 3029 S. Dort Hwy.,
Burton, MI; 3097 N. Genesee Rd., Flint, MI;
G-2499 Flushing Rd., Flint, MI; 1275 S.
Center Rd., Burton, MI; G-5016 Clio Rd.,
Flint, MI; 302 S. Leroy, Fenton, MI; 514 W.
Atherton, Flint, MI; G-4232 S. Saginaw St.,
Burton, MI); but excluding all office clerical
employees, store managers, assistant store man-
agers, guards and all other supervisors as de-
fined in the Act.
UNIT B
All office clerical employees employed by the
Employer at its G-4273 Corunna Road, Flint,
Michigan, facility; but excluding all store and
warehouse employees, store managers, assist-
ant store managers, guards, supervisors as de-
fined in the Act and all other employees.
(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 units
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 nine stores as set out above copies
of the attached notice marked "Appendix." 6
Copies of said notice, on forms provided by the
Regional Director for Region 7, 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 Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
6 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 Puru-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
426
ACTION AUTOMOTIVE, INC.
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 Retail Store Employees Union, Local 40,
United Food and Commercial Workers Inter-
national Union, AFL-CIO-CLC, as the exclu-
sive representative of the employees in the
bargaining units 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
units 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 units are:
UNIT A
All store and warehouse employees em-
ployed by the Employer at its nine stores
(G-4273 Corunna Rd., Flint, MI; 3029 S.
Dort Hwy., Burton, MI; 3097 N. Genesee
Rd., Flint, MI; G-2499 Flushing Rd., Flint,
MI; 1275 S. Center Rd., Burton, MI; G-5016
Clio Rd., Flint, MI; 302 S. Leroy, Fenton,
MI; 514 W. Atherton, Flint, MI; G-4232 S.
Saginaw St., Burton, MI); but excluding all
office clerical employees, store managers, as-
sistant store managers, guards and all other
supervisors as defined in the Act.
UNIT B
All office clerical employees employed by
the Employer at its G-4273 Corunna Road,
Flint, Michigan, facility; but excluding all
store and warehouse employees, store man-
agers, assistant store managers, guards, su-
pervisors as defined in the Act and all other
employees.
ACTION AUTOMOTIVE, INC.
427