Hartzheim Dodge Hayward

National Labor Relations Board - Board Decisions

May 29, 2009

354 NLRB No. 22 (N.L.R.B. 2009)

354 NLRB No. 22
NOTICE: This opinion is subject to formal revision before publication in the bound
volumes of NLRB decisions. Readers are requested to notify the Executive
Secretary, National Labor Relations Board, Washington, D.C. 20570, of any
typographical or other formal errors so that corrections can 7
Hartzheim Dodge, Inc. d/b/a Hartzheim Dodge Hay-
ward and Machinists Local Lodge No. 1546, Dis-
trict Lodge 190, International Association of
Machinists and Aerospace Workers. Case 32–
CA–24410
May 29, 2009
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
This is a refusal-to-bargain case in which the Respon-
dent is contesting the Union’s certification as bargaining
representative in the underlying representation proceed-
ing. Pursuant to a charge filed on March 23, 2009, the
General Counsel issued the complaint on April 3, 2009,
alleging that the Respondent has violated Section 8(a)(5)
and (1) of the Act by refusing the Union’s request to bar-
gain following the Union’s certification in Case 32–RC–
5577. (Official notice is taken of the “record” in the rep-
resentation proceeding as defined in the Board’s Rules
and Regulations, Sections 102.68 and 102.69(g); Fron-
tier Hotel, 265 NLRB 343 (1982).) The Respondent
filed an answer, admitting in part and denying in part the
allegations in the complaint, and asserting affirmative
defenses.
On April 17, 2009, the General Counsel filed a Motion
for Summary Judgment. On April 23, 2009, the Board
issued an order transferring the proceeding to the Board
and a Notice to Show Cause why the motion should not
be granted. The Respondent filed no response.
Ruling on Motion for Summary Judgment1
The Respondent admits its refusal to bargain, but con-
tests the validity of the Union’s certification on the basis

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act. See New Process Steel v. NLRB, ___ F.3d ___
2009 WL 1162556 (7th Cir. May 1, 2009), petition for cert. filed __
U.S.L.W. __ (U.S. May 27, 2009) (No. 08–1457); Northeastern Land
Services v. NLRB, 560 F.3d 36 (1st Cir. 2009), rehearing denied No.
08–1878 (May 20, 2009). But see Laurel Baye Healthcare of Lake
Lanier, Inc. v. NLRB, ___ F.3d ___, 2009 WL 1162574 (D.C. Cir. May
1, 2009), petition for rehearing filed Nos. 08–1162, 08–1214 (May 27,
2009).
of its objections to the election in the representation pro-
ceeding.
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding. The Respondent does not offer to ad-
duce at a hearing any newly discovered and previously
unavailable evidence, nor does it allege any special cir-
cumstances that would require the Board to reexamine
the decision made in the representation proceeding. We
therefore find that the Respondent has not raised any
representation issue that is properly litigable in this un-
fair labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord-
ingly, we grant the Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a California
corporation, with an office and place of business in
Hayward, California, has been engaged in the sale and
servicing of new and used automobiles. During the 12-
month period preceding issuance of the complaint, the
Respondent, in conducting its business operations de-
scribed above, derived gross revenues in excess of
$500,000 and purchased and received goods at its facility
valued in excess of $50,000 directly from suppliers lo-
cated outside the State of California.
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, Machinists Local
Lodge No. 1546, District Lodge 190, International Asso-
ciation of Machinists and Aerospace Workers, is a labor
organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the representation election held on Septem-
ber 17, 2008, the Union was certified on February 19,
2009, as the exclusive collective-bargaining representa-
tive of the employees in the following appropriate unit:
All full-time and regular part-time technicians, lube
technicians, service advisors, and parts department em-
ployees, including parts driver(s), employed by the
Employer at its Hayward, California facility; excluding
all managerial and administrative employees, auto and
truck salespersons, detailers, lot persons, office clerical
employees, all other employees, guards, and supervi-
sors as defined in the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
The Union continues to be the exclusive collective-
bargaining representative of the unit employees under Sec-
tion 9(a) of the Act.
B. Refusal to Bargain
About March 13, 2009, the Union, by letter, requested
that the Respondent recognize and bargain with it as the
exclusive collective-bargaining representative of the unit.
Since about March 18, 2009, the Respondent, by letter,
has failed and refused to recognize and bargain with the
Union as the exclusive collective-bargaining representa-
tive of the unit. We find that this failure and refusal con-
stitutes an unlawful failure and refusal to recognize and
bargain in violation of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By failing and refusing since about March 18, 2009, to
recognize and bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the appropriate unit, the Respondent has engaged in un-
fair labor practices affecting commerce within the mean-
ing of Section 8(a)(5) and (1) and Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, we shall order it to cease and
desist, to bargain on request with the Union, and, if an
understanding is reached, to embody the understanding
in a signed agreement.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by law, we shall construe the initial period of the certifi-
cation as beginning the date the Respondent begins to
bargain in good faith with the Union. Mar-Jac Poultry
Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB
226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379 U.S. 817 (1964); and Burnett Construction
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57
(10th Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, Hartzheim Dodge, Inc. d/b/a Hartzheim
Dodge Hayward, Hayward, California, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
Machinists Local Lodge No. 1546, District Lodge 190,
International Association of Machinists and Aerospace
Workers, as the exclusive collective-bargaining represen-
tative of the employees in the bargaining unit.
(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) On request, bargain with the Union as the exclusive
representative of the employees in the following appro-
priate unit on terms and conditions of employment and, if
an understanding is reached, embody the understanding
in a signed agreement:
All full-time and regular part-time technicians, lube
technicians, service advisors, and parts department em-
ployees, including parts driver(s), employed by the
Employer at its Hayward, California facility; excluding
all managerial and administrative employees, auto and
truck salespersons, detailers, lot persons, office clerical
employees, all other employees, guards, and supervi-
sors as defined in the Act.
(b) Within 14 days after service by the Region, post at
its facility in Hayward, California, copies of the attached
notice marked “Appendix.”2 Copies of the notice, on
forms provided by the Regional Director for Region 32,
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 March 18, 2009.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
HARTZHEIM DODGE HAYWARD 3
Dated, Washington, D.C. May 29, 2009
Wilma B. Liebman, Chairman
Peter C. Schaumber, 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 vio-
lated 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 recognize and bargain
with Machinists Local Lodge No. 1546, District Lodge
190, International Association of Machinists and Aero-
space Workers, as the exclusive collective-bargaining
representative of the employees in the bargaining unit.
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, on request, bargain with the Union and put in
writing and sign any agreement reached on terms and
conditions of employment for our employees in the fol-
lowing bargaining unit:
All full-time and regular part-time technicians, lube
technicians, service advisors, and parts department em-
ployees, including parts driver(s), employed by us at
our Hayward, California facility; excluding all manage-
rial and administrative employees, auto and truck
salespersons, detailers, lot persons, office clerical em-
ployees, all other employees, guards, and supervisors as
defined in the Act.
HARTZHEIM DODGE, INC. D/B/A
HARTZHEIM DODGE HAYWARD