Sandy Crocket Dodge

National Labor Relations Board - Board Decisions

Oct 15, 1969

179 N.L.R.B. 158 (N.L.R.B. 1969)

158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Max W . Hessman and William A . Crocket, a
Partnership , d/b/a Sandy Crocket Dodge and
International Association of Machinists and
Aerospace Workers, AFL-CIO, District Lodge
No. 87 . Case 20-CA-5586
October 15, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
Upon a charge filed by the International
Association of Machinists and Aerospace Workers,
AFL-CIO, District Lodge No. 87, the General
Counsel for the National Labor Relations Board, by
the Regional Director for Region 20, issued a
complaint dated June 11, 1969, against Max W.
Hessman and William A. Crocket, a Partnership,
d/b/a Sandy Crocket Dodge, herein called the
Respondent, alleging that Respondent had engaged
in and was engaging in unfair labor practices 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, complaint, and
notice of hearing were duly served upon the
Respondent and the Union.
With respect to the unfair labor practices, the
complaint alleges, in substance, that on April 10,
1969, the Union was duly certified by the Board as
the exclusive bargaining representative of
Respondent's employees in the unit found
appropriate by the Board and that, since on or
about May 6, 1969, Respondent has refused to
bargain with the Union as such exclusive bargaining
representative, although the Union has requested it
to do so. On or about June 16, 1969, Respondent
filed its answer, admitting in part, and denying in
part, the allegations of the complaint
On or about August 12, 1969, the General
Counsel filed with the Board a Motion for
Summary Judgment, requesting, in view of the
admissions contained in Respondent's answer, and
the Board's findings in the representation case,' that
the allegations of the complaint be found to be true
and that the Board make findings of fact and
conclusions of law in conformity with the allegations
of the complaint Thereafter, on August 15, 1969,
the Board issued an Order Transferring Proceeding
to the Board and Notice to Show Cause why
General Counsel's Motion for Summary Judgment
should not be granted. Pursuant thereto, Respondent
filed a Response to the Notice to Show Cause
requesting that the General Counsel's Motion for
Summary Judgment be denied and that the
complaint herein be dismissed.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
'Case 20-RC-8481
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
Upon the entire record in this case, the Board
makes the following:
Ruling on the Motion for Summary Judgment
On November 19, 1968, the Union filed a petition
for an election in the unit hereinafter defined. After
a hearing, the Regional Director for Region 20
issued a Decision and Direction of Election on
February 27, 1969, in which he found appropriate
for collective bargaining the following unit of
employees:
All new and used car and truck salesmen
employed at the Employer's Fresno, California,
operations, excluding all other employees, office
clerical employees, managers, assistant managers,
guards and supervisors as defined in the Act.
The Respondent did not file a Request for Review
of the Decision and Direction of Election. On April
2, 1969, an election was held, in which a majority of
the valid ballots were cast for the Union No
objections having been filed, the Union was certified
on April 10, 1969
On or about April 29, 1969, the Union requested
that Respondent bargain collectively with it. On
May 6, 1969, Respondent refused to bargain
collectively with the Union, and the Union filed the
charges upon which these proceedings are
predicated.
In its Response to the Notice to Show Cause,
Respondent rests its refusal to bargain upon its
contentions that the petition filed herein was not
filed by an authorized agent of the Union and that
the petitioned for unit is inappropriate. Respondent
accordingly contests the validity of the
Board-conducted election and the Certification of
Representative based thereon.
It is well settled that in the absence of newly
discovered or previously unavailable evidence, a
respondent in a Section 8(a)(5) proceeding is not
entitled to relitigate issues which were or could have
been raised in the prior representation proceeding.'
As the Employer filed no request for review to the
Regional Director's Decision in the representation
case, it is foreclosed from contesting that Decision
now ' And as all factual allegations of the complaint
are admitted by Respondent's answer to the
complaint or stand admitted by the failure of
Respondent to controvert the averments of the
General Counsel's motion, there are no matters in
issue requiring a hearing before a Trial Examiner.
Accordingly, the General Counsel's Motion for
Summary Judgment is granted.
On the basis of the record before it, the Board
makes the following:
'Pittsburg Plate Glass Company v N L R B. 313 U S 146, The
Sheffield Corporation , 163 NLRB 180, and Collins & Aikman Corp , 160
NLRB 1750
'Section 102 67(f), National Labor Relations Board Rules and
Regulations
179 NLRB No. 24
SANDY CROCKET DODGE 159
FINDINGS OF FACT B. The Request to Bargain and the
Respondent's Refusal
I THE BUSINESS OF THE RESPONDENT
Respondent, a partnership, has been doing
business under the trade name of Sandy Crocket
Dodge, with a place of business in Fresno,
California, and at all times material herein, has
been engaged in the retail sale of new and used
automobiles. During the past year, Respondent, in
the course and conduct of its business operations,
made retail sales of goods and services in excess of
$500,000. During the same period, Respondent
purchased and received goods and materials valued
in excess of $50,000 directly from suppliers located
outside the State of California. We find 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 in this case
II. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists and
Aerospace Workers, AFL-CIO, District Lodge No.
87 is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees at the Respondent's
Fresno, California, operations constitute a unit
appropriate for collective bargaining within the
meaning of Section 9(b) of the Act:
All new and used car and truck salesmen
employed at the Employer's Fresno, California,
operations; excluding all other employees, office
clerical employees, managers, assistant managers,
guards and supervisors as defined in the Act.
2. The certification
On April 2, 1969, a majority of the employees of
Respondent in said unit, in an election by secret
ballot conducted under the supervision of the
Regional Director for Region 20, designated the
Union as their representative for the purpose of
collective bargaining with Respondent, and on April
10, 1969, the Regional Director for Region 20
certified the Union as the collective-bargaining
representative of the employees in said unit and the
Union continues to be such representative.
Commencing on or about April 29, 1969, and
continuing to date, the Union has been requesting
the Respondent to bargain collectively with it with
respect to wages, hours, and working conditions of
the employees in the appropriate unit. At all times
since on or about May 6, 1969, and continuing to
date, Respondent did refuse and has continued to
refuse to recognize and bargain collectively with the
Union as exclusive collective-bargaining
representative of all employees in said unit.
Accordingly, we find that the Respondent has
refused to bargain collectively with the Union as the
exclusive bargaining representative of the employees
in the appropriate unit, and that, by such refusal,
the Respondent 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 acts of the Respondent set forth in section
III, above, occurring in connection with its
operations as described in section 1, above, have a
close, intimate, and substantial relation 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.
THE REMEDY
Having found that the Respondent has engaged 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 appropriate
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 year of
certification as beginning on the date the
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; Commerce
Company d/b/a Lamar Hotel, 140 NLRB 226, 229,
enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S.
817; Burnett Construction Company, 149 NLRB
1419, 1421, enfd. 350 F.2d 57 (C.A. 10).
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Max W. Hessman and William A. Crockett, a
Partnership d/b/a Sandy Crocket Dodge is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act
2. International Association of Machinists and
Aerospace Workers, AFL-CIO, District Lodge No
87, is a labor organization within the meaning of
Section 2(5) of the Act
3. All new and used car and truck salesmen
employed at the Employer's Fresno, California,
operations; excluding all other employees, office
clerical employees, managers, assistant managers,
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 April 10, 1969, the above-named labor
organization has been certified as the exclusive
representative of all employees in the aforesaid
appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about May 6, 1969, 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 to them in
Section 7 of the Act, and thereby 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
meaning 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,
Max W. Hessman and William A. Crocket, a
Partnership, d/b/a Sandy Crocket Dodge, Fresno,
California, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from.
(a) Refusing to bargain collectively concerning
wages, hours, and other terms and conditions of
employment, with international Association of
Machinists and Aerospace Workers, AFL-CIO,
District Lodge No 87, as the exclusive bargaining
representative of its employees in the following
appropriate unit:
All new and used car and truck salesmen
employed at the Employer's Fresno, California,
operations, excluding all other employees, office
clerical employees, managers, assistant managers,
guards and supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the rights
guaranteed to them by 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
understanding in a signed agreement.
(b) Post at its Fresno, California, place of
business, copies of the attached notice marked
"Appendix "4 Copies of said notice on forms
provided by the Regional Director for Region 20,
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 Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify said Regional Director for Region 20,
in writing, within 10 days from the date of this
Decision and Order, what steps Respondent has
taken to comply herewith.
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 National 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 "
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
International Association of Machinists and Aerospace
Workers, AFL-CIO, District Lodge No. 87, 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 representative of
all employees in the bargaining unit described below,
with respect to wages, hours, and other terms and
conditions of employment, and, if an understanding is
reached, embody such understanding in a signed
agreement.
SANDY CROCKET DODGE
The bargaining unit is.
All new and used car and truck salesmen employed at
the Employer's Fresno, California, operations,
excluding all other employees, office clerical
employees, managers, assistant managers, guards and
supervisors, as defined in the Act.
Dated By
MAX W. HESSMAN AND
WILLIAM A. CROCKET, A
PARTNERSHIP, D/B/A
SANDY CROCKET DODGE
(Employer)
(Representative ) (Title)
THIS IS AN OFFICIAL NOTICE AND MUST
NOT BE DEFACED BY ANYONE
161
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's Office,
13050 Federal Building, 450 Golden Gate Avenue, Box
36047, San Francisco, California 94102, Telephone
415-556-3197.