Falk Motors

National Labor Relations Board - Board Decisions

Jan 9, 1980

247 N.L.R.B. 1093 (N.L.R.B. 1980)

FALK MOTORS
Falk Motors, Inc. and District Lodge 60, Internation-
al Association of Machinists and Aerospace Work-
ers, AFL-CIO. Case 7-CA- 16867
February 14, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
Upon a charge filed on September 27, 1979, by
District Lodge 60, International Association of Ma-
chinists and Aerospace Workers, AFL-CIO, herein
called the Union, and duly served on Falk Motors,
Inc., herein called Respondent, the General Counsel
of the National Labor Relations Board, by the Acting
Regional Director for Region 7, issued a complaint on
October 2, 1979, 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 were
duly served on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on July 9, 1979,
following a Board election in Case 7-RC-15309, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commencing
on or about September 14, 1979, and at all times
thereafter, 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 October 10, 1979, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint.
On October 18, 1979, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on October 30,
1979, the Board issued an order transferring the
proceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent thereaf-
ter 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
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
I Official notice is taken of the record in the representation proceeding, Case
7-RC-15309, as the term "record" is defined in Seecs. 102.68 and 102.69(g) of
the Board's Rules and Regulations, Series 8, as amended. See LTV
Electrosystems. Inc.. 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir.
247 NLRB No. 149
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its answer to the Order transferring the proceed-
ing to the Board and the Notice To Show Cause,
Respondent asserts that the Union's certification was
improper because the Regional Director and the
Board improperly sustained the Union's challenge to
the ballot of Joseph Falk, the son of Respondent's
president and general manager. The General Counsel,
on the other hand, argues that Respondent is trying to
relitigate issues which were or could have been
litigated in the prior representation proceeding and
that there are no issues of fact warranting a hearing.
We agree with the General Counsel.
Review of the record herein, including the record in
Case 7-RC-15309, reveals that pursuant to a Stipula-
tion for Certification Upon Consent Election approved
by the Regional Director on March 23, 1979, an
election was conducted on April 12, 1979. The
election resulted in a vote of 6 votes for and 5 votes
against the Union; there was I challenged ballot, a
determinative number. Thereafter, the Union filed
timely objections to conduct affecting the results of the
election.
After investigation, the Regional Director issued his
Report and Recommendations on Challenged Ballot
and Objections on May 3, 1979, wherein he recom-
mended that the challenge to the ballot of Joseph Falk
be sustained and deferred making a decision on the
objections pending final resolution of the challenged
ballot. Thereafter, on May 9, 1979, Respondent filed a
response to the Regional Director's report and a
motion for a new election. On July 9, 1979, the Board
issued its Decision and Certification of Respresenta-
tive in which it adopted the Regional Director's
recommendations, including, inter alia, the recom-
mendation to sustain the challenge to Joseph Falk's
ballot; certified the Union as collective-bargaining
representative of Respondent's employees; and denied
Respondent's motion for a new election. On July 17,
1979, Respondent filed a motion for rehearing and
requested the Board to reconsider its ruling sustaining
the challenge to Joseph Falk's ballot.
On August 28, 1979, the Board issued an Order
denying Respondent's Motion on the grounds that it
was lacking in merit and contained nothing not
previously considered by the Board. In its answer to
the order transferring the proceeding to the Board and
the Notice To Show Cause, Respondent relies on
1968); Golden Age Beverage Co.. 167 NLRB 151 (1967), enfd. 415 F.2d 26
(5th Cir. 1969) Intertype Co. . Penelo. 269 F Supp. 573 (D C.Va. 1967);
Folletr Corp.. 164 NLRB 378 (1967). enfd. 397 F.2d 91 (7th Cir. 1968) Sec
9(d) of the NLRA. as amended.
1093.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arguments set forth in its response to the Regional
Director's report and its motion for rehearing. It thus
appears that Respondent is attempting to relitigate
issues fully litigated and finally determined in the
representation proceeding.
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
special circumstances a respondent in a proceeding
alleging 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.
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior
representation proceeding, and Respondent does not
offer to adduce at a hearing any newly discovered 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:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Michigan corporation, is engaged in
the retail sale and service of new and used automo-
biles. During the calendar year ending December 31,
1978, a representative period of its operations during
all times material hereto, Respondent, in the course
and conduct of its business operations, derived gross
revenues in excess of $500,000. During the same
period of time, Respondent, during the course of its
business operations, purchased and received at its Port
Huron, Michigan, facility goods and materials valued
in excess of $50,000 directly and indirectly from points
located outside the State of Michigan.
We find, on the basis of the foregoing, that
Respondent 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.
II. THE LABOR ORGANIZATION INVOLVED
District Lodge 60, International Association of
Machinists and Aerospace Workers, AFL-CIO, is a
' See Pirsbuirh Plate Glass Co. v. N.LR.B.. 313 U.S. 146, 162 (1941);: Rules
md Regulations of the Board. Sees. 102.67(0) and 102.69(c).
labor organization within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR I.ABOR PRACTICES
A. The Representation Proceeding
I. 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 full-time and regular part-time service and
body shop department employees, including me-
chanics, mechanic helpers, apprentices, washers,
greasers, porters, new car prep persons, parts
persons, parts delivery persons, body repair and
paint persons, employed by Respondent at its
Port Huron, Michigan, facilities; but excluding
all office clerical employees, professional employ-
ees, new and used car sales persons, and guards
and supervisors as defined in the Act.
2. The certification
On April 12, 1979, a majority of the employees of
Respondent in said unit, 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-bargaining representative of the employees
in said unit on July 9, 1979, 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 September 6, 1979, 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 employ-
ees in the above-described unit. Commencing on or
about September 14, 1979, and continuing at all times
thereafter to date, Respondent had refused, and
continues 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
September 14, 1979, 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, Respon-
1094
FALK MOTORS
dent 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 operations
described in section , above, have a close, intimate,
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 appro-
priate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the
appropriate unit will be accorded the services of their
selected bargaining agent for the period provided 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 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. Falk Motors, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. District Lodge 60, International Association of
Machinists and Aerospace Workers, AFL-CIO, is a
labor organization within the meaning of Section 2(5)
of the Act.
3. All full-time and regular part-time service and
body shop department employees, including mechan-
ics, mechanic helpers, apprentices, washers, greasers,
porters, new car pre persons, parts persons, parts
delivery persons, body repair and paint persons,
employed by Respondent at its Port Huron, Michigan,
facilities; but excluding all office clerical employees,
professional employees, new and used car sales per-
sons and guards and supervisors as defined in the Act
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
4. Since July 9, 1979, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about September 14, 1979, and
at all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit, Respondent has
engaged 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 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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Falk Motors, Inc., Port Huron, Michigan, 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 conditions
of employment with District Lodge 60, International
Association of Machinists and Aerospace Workers,
AFL-CIO, as the exclusive bargaining representative
of its employees in the following appropriate unit:
All full-time and regular part-time service and
body shop department employees, including me-
chanics, mechanic helpers, apprentices, washers,
greasers, porters, new car prep persons, parts
persons, parts delivery persons, body repair and
paint persons, employeed by the Respondent at
its Port Huron, Michigan, facilities; but excluding
all office clerical employees, professional employ-
ees, new and used car sales persons, and guards
and supervisors as defined in the Act.
1095
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(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 understand-
ing is reached, embody such understanding in a signed
agreement.
(b) Post at its Port Huron, Michigan, facilties copies
of the attached notice marked "Appendix."' 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 Re-
spondent 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 7, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
' 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 Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Relations Board."
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 Dis-
trict Lodge 60, International Association of
Machinists and Aerospace Workers, AFL-CIO,
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 representa-
tive 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 agree-
ment. The bargaining unit is:
All full-time and regular part-time service and
body shop department employees, including
mechanics, mechanic helpers, apprentices,
washers, greasers, porters, new car prep per-
sons, parts persons, parts delivery persons,
body repair and paint persons, employed by the
Employer as its Port Huron, Michigan, facili-
ties; but excluding all office clerical employees,
professional employees, new and used car sales
persons, and guards and supervisors as defined
in the Act.
FALK MOTORS, INC.
1096