Griffith Oldsmobile, Inc.

National Labor Relations Board - Board Decisions

Jul 31, 1970

184 N.L.R.B. 722 (N.L.R.B. 1970)

722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Griffith Oldsmobile , Incorporated and District
Lodge 71 , International Association of Machinists
& Aerospace Workers, AFL-CIO. Case
17-CA-4201
July 31, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On May 13, 1970, Trial Examiner Charles W.
Schneider issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged
in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, Respondent filed exceptions. to the
Trial Examiner's Decision and a supporting brief.
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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Deci-
sion, the exceptions and the brief, and the entire
record in the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Ex-
aminer.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that Respondent, Griffith Oldsmobile, Incor-
porated, Kansas City, Missouri, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The Issue
CHARLES W. SCHNEIDER, Trial Examiner: The
case arises on a Motion for Summary Judgment
filed by counsel for the General Counsel upon an
admitted refusal by the Respondent to bargain with
the certified Charging Union, the Respondent con-
testing the validity of Board rulings in the represen-
tation proceeding in which the Union was certified.
The Representation Proceeding'
Upon a petition filed in Case 17-RC-6030 under
Section 9 of the National Labor Relations Act (29
U.S.C.A. 159) on April 28, 1969, by District Lodge
71, International Association of Machinists &
Aerospace Workers, AFL-CIO, herein called the
Union, the Union and Griffith Oldsmobile, Incor-
porated, herein called the Respondent, entered into
a Stipulation for Certification Upon Consent Elec-
tion, which was approved by the Regional Director
for Region 17 of the National Labor Relations
Board on May 1, 1969.
Pursuant to the stipulation, an election in an ap-
propriate bargaining unit , described hereinafter,
was held on May 13, 1969, under the direction and
supervision of the Regional Director to determine
the question of representation. Upon conclusion of
the election, the parties were furnished a tally of
ballots, which showed that of approximately 12
voters, 6 cast valid ballots for the Union, 4 cast
valid ballots against the Union, and 2 ballots were
challenged. The challenged ballots were sufficient
in number to affect the results of the election.
On May 20, 1969, the Respondent filed timely
Objections to Conduct Affecting the Results of the
Election, alleging in substance that (1) the Union,
through its officers, members, agents, and/or ad-
herents, engaged in coercion against a background
of threats of physical violence and loss of jobs; (2)
the secrecy of the balloting was not maintained; (3)
the Union engaged in campaigning and soliciting
approximately 30 minutes prior to the election in
areas adjacent to the polling places; (4) the Union's
observer carried on conversations with employees
waiting to vote and solicited their support for the
Union; and (5) for these reasons it was impossible
to conduct, a fair election. Respondent requested
that the election be set aside and a new election be
ordered, or that a hearing be held on such objec-
tions.
On September 24, 1969, the Acting Regional
Director issued a Report on Objections and Chal-
lenged Ballots and Recommendations. In the report
he stated that an investigation of the Respondent's
objections had been conducted during which all
parties were afforded opportunity to submit
evidence bearing on the issues . The Acting Re-
gional Director found that none of the Respon-
dent's objections were sustained by the evidence.
' Administrative or official notice is taken of the record in the represen-
tation proceeding , Case 17-RC-6030, as the term "record" is defined in
Sections 102 68 and 102 69 (f) of Board Rules and Regulations and State-
ments of Procedure , Series 8, as amended See LTV Electrosystems, Inc ,
166 NLRB 938 , enfd 388 F 2d 683 (C A 4, 1968), cert denied 393 U S
843, Golden Age Beverage Co , 167 NLRB 151, enfd 415 F 2d 26 (C A 5,
1969), Intertype Co v Penello, 269 F Supp 573 (D C Va , 1967), Inter-
type Co v N L R B, 401 F 2d 41 (C A 4, 1968), cert denied 393 U S
1049 (1969), Follett Corp, 164 NLRB 378, enfd. 397 F 2d 91 (C.A 7,
1968), Section 9(d) of the National Labor Relations Act
184 NLRB No. 85
GRIFFITH OLDSMOBILE
As to the challenged ballots, the Acting Regional
Director found that neither of the two employees
involved, William L. Land and William T. Arthur,
was employed by Respondent at the time of the
election. The Regional Director recommended that
since it appeared that the Union had secured a
majority of the valid votes cast, the Board over-
ruled Respondent's objections in their entirety
without hearing, sustain the challenges to the bal-
lots of Land and Arthur, and certify the Union as
the collective-bargaining representative of the em-
ployees in the appropriate unit.
Thereafter on October 7, 1969, the Respondent
filed Exceptions to the Regional Director's Report
on Objections and Challenged Ballots and Recom-
mendations in which Respondent reiterated its ob-
jections to the conduct of the election, and
requested that the election be set aside or that a
hearing be held on such objections, stating that
"the conduct complained of is sufficient to warrant
setting aside the election" and that it "would be an
abuse of the Board's discretion and would violate
the unit employees' right to a free election" if the
Board were to adopt the findings of the Acting Re-
gional Director.
On January 6, 1970, the Board issued a Decision
and Certification of Representative, in which the
Board stated that it "has considered the Regional
Director's Report on Objections and Challenged
Ballots and the entire record in the case, including
the exceptions and the brief, and hereby adopts the
Regional Director's findings and recommenda-
tions." The Board further said that, "The Em-
ployer's exceptions, in our opinion, raise no materi-
al or substantive issues of fact or law which would
warrant reversal of the Regional Director's findings
and recommendations on objections." Accordingly,
the Board certified the Union as the collective-bar-
gaining representative of the employees in the ap-
propriate unit.
The Unfair Labor Practice Case
On February 4, 1970, the Union filed the instant
unfair labor practice charge alleging that Respon-
dent was engaging in unfair labor practices by
refusing to bargain with the Union.
On March 1 1, 1970, the Regional Director issued
a complaint and notice of hearing alleging viola-
tions by the Respondent of Section 8(a)(1) and (5)
and Section 2(6) and (7) of the Act, by refusing
since on or about January 8, 1970, and continuing
to date , to recognize and bargain with the Union
though requested to do so by the Union on or about
January 8 and 19, 1970.
' Krieger-Ragsdale & Co, Inc, 159 NLRB 490, enfd 379 F 2d 517 (C A
7, 1967), cert denied 389 U S 1041 See Pittsburgh Plate Glass Co v
N L R B, 313 U S 146, 162 (1941 ), NLRB Rules and Regulations, Sec-
tions 102 67(f) and 102 69(c)
' 0 K Van and Storage, Inc , 127 NLRB 1537, enfd 297 F 2d 74 (C A
5, 1961) See N L R B v Air Control Window Products, Inc, 335 F 2d 245,
723
On March 23, 1970 , Respondent filed its answer
to complaint , in which it denied the representative
status of the Union and the commission of unfair
labor practices , but admitted most of the remaining
material factual allegations of the complaint.
On March 31, 1970, counsel for the General
Counsel filed a Motion for Summary Judgment,
dated March 27, 1970, on the ground that the
Respondent 's answer raises no litigable issue of fact
requiring hearing . On April 1, 1970, 1 issued an
Order To Show Cause on General Counsel's Mo-
tion for Summary Judgment , returnable April 15,
1970, and subsequently extended , upon request of
counsel for the Respondent , to April 27, 1970. On
April 27 , 1970, Respondent filed its response to
Trial Examiner 's Order To Show Cause X' b other
responses have been received.
Ruling on Motion for Summary Judgment
Respondent opposes granting of the Motion for
Summary Judgment and requests that I review the
issues raised by the Respondent's objections to the
election, and find that the election should be set
aside or, in the alternative, that Respondent is enti-
tled to a hearing.
It is established Board policy, in absence of newly
discovered or previously unavailable evidence, or
special circumstances, not to permit litigation be-
fore a Trial Examiner in an unfair labor practice
case of issues which were or could have been
litigated in a prior related representation proceed-
ing.2 This policy is applicable even though no for-
mal hearing on objections has been provided by the
Board. Such a hearing is not a matter of right unless
substantial and material issues are raised.3
The Respondent's position is essentially that (1)
the evidence before the Board in the representation
case established the validity of the Respondent's
objections to the election, (2) evidence in any
event raised substantial and material factual issues
requiring hearing, and (3) there is material new
evidence.
As indicated above, the representation decision is
not to be relitigated in the absence of new evidence
or special circumstances. I find neither exception
applicable here. Though the Respondent has sub-
mitted with its response to the Order To Show
Cause signed statements of individuals supporting
the Respondent's position, these statements, in the
main, represent evidence considered in the Re-
gional Director's report on the objections or that
was before him in that connection. To the extent
that the evidence may be new there is no showing
either that it was not known to the Respondent at
249 (C A 5, 1964) "If there is nothing to hear, then a hearing is a sense-
less and useless formality " See also N L R B v Bata Shoe Co , 377 F 2d
821, 826 (CA 4, 1967), cert denied 389 U S 917 "there is no require-
ment , constitutional or otherwise , that there be a hearing in the absence of
substantial and material issues crucial to determination of whether NLRB
election results are to be acceptedfor purposes of certification "
427-835 0 - 74 - 47
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the time of the Respondent's exceptions to the Re-
gional Director's report on objections, or that it
could not have been presented to the Board at that
time. The evidence cannot therefore be said to be
newly discovered or previously unavailable. In such
circumstances the decision of the Board to the ef-
fect that the Respondent's objections raised no sub-
stantial or material issues affecting the validity of
the election is the law of the case at this stage of
the proceeding, and may be reviewed only by the
Board or a court of appeals.
There thus being no unresolved matters requiring
an evidentiary hearing the Motion for Summary
Judgment of counsel for the General Counsel is
granted.
Upon the basis of the record before me, I make
the following further:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Missouri corporation en-
gaged in the sale of new and used motor vehicles,
with its place of business located in Kansas City,
Missouri.
In the course and conduct of its business, the
Respondent has annual retail sales of motor vehi-
cles in excess of $500,000, and annually purchases
motor vehicles directly from outside the State of
Missouri valued in excess of $50,000.
The Respondent is now , and at all times material
herein has been , an employer engaged in commerce
within the meaning of Section 2(6) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and at all times material herein has
been , a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The following employees of Respondent con-
stitute a unit appropriate for purposes of collective
bargaining within the meaning of Section 9(b) of
the Act:
All new and used car salesmen, including truck
salesmen , but excluding supervisors as defined
in the Act and all other employees.
On January 6, 1970, the Board certified the
Union as the exclusive collective-bargaining
representative of the employees in the appropriate
unit for purposes of collective bargaining.
' The purpose of this provision is 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. See Mar-Jac Poultry Co , 136 NLRB
785, Commerce Co d/bla Lamar Hotel , 140 NLRB 226, 229, 328 F 2d 600
(C A 5, 1964), cert denied 379 U S 817, Burnett Construction Co, 149
NLRB 1419, 1421, 350 F 2d 57 (C A 10, 1965)
5 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations , and Recommended Order herein
On February 12, 1970, and at all times since,
Respondent refused to recognize and bargain with
the Union as the collective-bargaining representa-
tive of said employees, although requested to do so
by the Union.
By thus refusing to bargain collectively, Respon-
dent has engaged in unfair labor practices within
the meaning of Section 8(a)(1) and ( 5) and Sec-
tion 2(6) and (7) of the Act [sic].
Upon the foregoing findings and conclusions,
pursuant to Section 10(c) of the Act, I recommend
that the Board issue the following:
ORDER
A. For the purpose of determining the duration
of the certification, the initial year of certification
shall be deemed to begin on the date the Respon-
dent commences to bargain in good faith with the
Union as the recognized exclusive bargaining
representative in the appropriate unit.4
B. Griffith Oldsmobile, Incorporated, its officers,
agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with District
Lodge 71, International Association of Machinist &
Aerospace Workers, AFL-CIO, as the exclusive
collective-bargaining representative of the em-
ployees in the following appropriate bargaining
unit:
All new and used car salesmen, including truck
salesmen, but excluding supervisors as defined
in the Act and all other employees.
(b) Interfering with the efforts of said Union• to
negotiate for or represent employees as exclusive
collective-bargaining representative.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request bargain collectively with Dis-
trict Lodge 71, International Association of
Machinists & Aerospace Workers, AFL-CIO, as
the exclusive representative of all employees in the
appropriate unit with respect to rates of pay, wages,
hours of employment, and other terms and condi-
tions of employment, and embody in a signed
agreement any understanding reached.
(b) Post at its place of business in Kansas City,
Missouri, copies of the attached notice marked
"Appendix. "5 Copies of said notice, on forms pro-
vided by the Regional Director for Region 17, after
being duly signed by an authorized representative,
shall be posted by the Respondent immediately
upon receipt thereof and be maintained by the
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board 's 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 be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
GRIFFITH OLDSMOBILE 725
Respondent for a period of 60 consecutive days
thereafter in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 17,
in writing, within 20 days from receipt of this
recommended Order, what steps the Respondent
has taken to comply herewith.'
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read " Notify the Regional Director for
Region 17, in writing , within 10 days from the date of this Order , what steps
Respondent has taken to comply herewith "
ing truck salesmen, but excluding super-
visors as defined in the Act and all other
employees.
WE WILL NOT interfere with the efforts of the
Union to negotiate for or represent employees
as exclusive collective-bargaining representa-
tive.
WE WILL bargain collectively with the Union
as the exclusive collective-bargaining represen-
tative of the employees in the appropriate unit,
and, if an understanding is reached, we will
sign a contract with the Union.
GRIFFITH OLDSMOBILE,
INCORPORATED
(Employer)
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
with District Lodge 71, International Associa-
tion of Machinists & Aerospace Workers,
AFL-CIO, as the exclusive collective-bargain-
Ing representative of all our following em-
ployees:
All new and used car salesmen, includ-
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, 610 Federal Building , 601 East 12th
Street, Kansas City, Missouri 64106, Telephone
816-374-5181.