Elmhurst Lincoln Mercury

National Labor Relations Board - Board Decisions

Sep 21, 2010

355 NLRB No. 187 (N.L.R.B. 2010)

355 NLRB No. 187
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
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.
Elmhurst Lincoln Mercury and Automobile Mechan-
ics Local 701, International Association of Ma-
chinists and Aerospace Workers, AFL–CIO.
Case 13–CA–45759
September 21, 2010
DECISION AND ORDER
BY MEMBERS BECKER, PEARCE, AND HAYES
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has failed to file
an answer to the complaint. Upon a charge filed by
Automobile Mechanics Local 701, International Associa-
tion of Machinists and Aerospace Workers, AFL–CIO
(the Union), on January 6, 2010, the General Counsel
issued the complaint on March 24, 2010, against Elm-
hurst Lincoln Mercury (the Respondent), alleging that it
has violated Section 8(a)(5) and (1) of the Act. The Re-
spondent failed to file an answer.
On May 11, 2010, the General Counsel filed a Motion
for Default Judgment with the Board. Thereafter, on
May 13, 2010, the Board issued an order transferring the
proceeding to the Board and a Notice to Show Cause1
why the motion should not be granted. The Respondent
filed no response. The allegations in the motion are
therefore undisputed.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Default Judgment
Section 102.20 of the Board's Rules and Regulations
provides that the allegations in a complaint shall be
deemed admitted if an answer is not filed within 14 days
from service of the complaint, unless good cause is
shown. In addition, the complaint affirmatively stated
that unless an answer was received on or before April 7,
2010, the Board may find, pursuant to a motion for de-
fault judgment, that the allegations in the complaint are
true. Further, the undisputed allegations in the General
Counsel’s motion disclose that the Region, by letter
dated April 13, 2010, notified the Respondent that unless
an answer was received by April 20, 2010, a motion for
default judgment would be filed.
In the absence of good cause being shown for the fail-
ure to file a timely answer, we grant the General Coun-
sel's Motion for Default Judgment.
On the entire record, the Board makes the following

1 On June 17, 2010, another copy of the Notice to Show Cause was
sent to the Respondent.
FINDINGS OF FACT
I. JURISDICTION
At all material times the Respondent, a Delaware cor-
poration, with an office and place of business in Elm-
hurst, Illinois, has been engaged in the sale and service of
new and used automobiles.
During the calendar year preceding issuance of the
complaint, a representative period, the Respondent, in
conducting the business described above, derived gross
revenues in excess of $500,000 and purchased and re-
ceived at its facility goods valued in excess of $5000
directly from points outside the State of Illinois.
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 PRACTICE
At all material times, the following individuals held
the positions set forth opposite their respective names
and have been supervisors of the Respondent within the
meaning of Section 2(11) of the Act and agents of the
Respondent within the meaning of Section 2(13) of the
Act:
David Mears Chairman
John Moroni President
The following employees of the Respondent (the unit)
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time Journeyman Techni-
cians, Body Shop Technicians, apprentices, lube rack
technicians, and semi-skilled technicians.
At all material times the Respondent has been an em-
ployer-member of the New Car Dealer Committee (the
Committee), a multiemployer association, one purpose of
which is to represent its employer-members in negotiat-
ing and administering collective-bargaining agreements
with the Union. At all material times, the Respondent
has authorized the Committee to represent it in negotiat-
ing and administering collective-bargaining agreements
with the Union.
At all material times, the Union has been the desig-
nated exclusive collective-bargaining representative of
the multiemployer association unit and has been recog-
nized as such representative by the Respondent. This
recognition has been embodied in successive collective-
bargaining agreements, the most recent of which was
effective August 1, 2005, through July 31, 2009.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
At all material times, based on Section 9(a) of the Act,
the Union has been the exclusive collective-bargaining
representative of the multiemployer association unit.
On about August 1, 2009, the Union and the Commit-
tee reached a complete agreement on terms and condi-
tions of employment of the unit that was incorporated in
a collective-bargaining agreement (the 2009 agreement).
Since about October 2009, the Union, by Thomas
Gregg, has requested that the Respondent execute the
2009 agreement described above.
Since about December 11, 2009, the Respondent, by
David Mears, has failed and refused to execute the 2009
agreement described above.
CONCLUSION OF LAW
By failing and refusing to execute the 2009 agreement,
the Respondent has failed and refused to bargain collec-
tively and in good faith with the exclusive collective-
bargaining representative of its employees, in violation
of Section 8(a)(5) and (1) of the Act. The Respondent’s
unfair labor practices affect commerce within the mean-
ing of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent has violated Section 8(a)(5)
and (1) of the Act by failing and refusing, since about
December 11, 2009, to execute the collective-bargaining
agreement reached on August 1, 2009, we shall order the
Respondent to execute and implement the agreement and
give retroactive effect to its terms. We shall also order
the Respondent to make whole the unit employees for
any loss of earnings and other benefits they may have
suffered as a result of the Respondent's refusal to execute
the 2009 agreement, as set forth in Ogle Protection Ser-
vice, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), with interest as prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Elmhurst Lincoln Mercury, Elmhurst, Illi-
nois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with Automobile Mechanics Local 701, Inter-
national Association of Machinists and Aerospace Work-
ers, AFL–CIO, as the exclusive collective-bargaining
representative of the unit described below, by failing and
refusing to execute the collective-bargaining agreement
reached on August 1, 2009, regarding the terms and con-
ditions of employment of unit employees. The unit is:
All full-time and regular part-time Journeyman Techni-
cians, Body Shop Technicians, apprentices, lube rack
technicians, and semi-skilled technicians.
(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) Execute and implement the collective-bargaining
agreement reached on August 1, 2009, give retroactive
effect to the agreement’s terms and conditions of em-
ployment, and make unit employees whole for any loss
of earnings and other benefits they have suffered as a
result of the Respondent’s failure to execute the agree-
ment, with interest, as set forth in the remedy section of
this Decision.
(b) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Within 14 days after service by the Region, post at
its facility in Elmhurst, Illinois, copies of the attached
notice marked “Appendix.”2 Copies of the notice, on
forms provided by the Regional Director for Region 13,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent 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 Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since December 11, 2009.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-

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
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
ELMHURST LINCOLN MERCURY 3
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 21, 2010
Craig Becker, Member
Mark Gaston Pearce, Member
Brian E. Hayes, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to bargain collectively
and in good faith with Automobile Mechanics Local 701,
International Association of Machinists and Aerospace
Workers, AFL–CIO, as the exclusive collective-
bargaining representative of our employees in the unit
described below, by failing and refusing to execute the
collective-bargaining agreement reached on August 1,
2009, regarding the terms and conditions of employment
of unit employees. The unit is:
All full-time and regular part-time Journeyman Techni-
cians, Body Shop Technicians, apprentices, lube rack
technicians, and semi-skilled technicians.
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 execute and implement the collective-
bargaining agreement reached on August 1, 2009, give
retroactive effect to the agreement’s terms and conditions
of employment, and WE WILL make unit employees
whole for any loss of earnings and other benefits they
have suffered as a result of our failure to execute the
agreement, with interest.
ELMHURST LINCOLN MERCURY