Bravos Oldsmobile, Inc.

National Labor Relations Board - Board Decisions

Mar 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.