Tom's Ford Inc.

National Labor Relations Board - Board Decisions

May 24, 1978

236 N.L.R.B. 424 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tom's Ford Incorporated and Amalgamated Local
Union No. 355. Case 22-CA-8072
May 25, 1978
DECISION AND ORDER
BY MEMBERS JENKINS. PENELLO, AND MURPHY
Upon a charge filed on November 30, 1977, by
Amalgamated Local Union No. 355, herein called
the Charging Party or the Union, and duly served on
Tom's Ford Incorporated, herein called Respondent,
the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 22, is-
sued a complaint and notice of hearing on December
21, 1977, against Respondent, alleging that Respon-
dent had engaged in and was engaging in unfair la-
bor 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. Cop-
ies of the charge, complaint, and notice of hearing
before an Administrative Law Judge were duly
served on the parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on November 11,
1977, following a Board election in Case 22-RC-
6840 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 November 18, 1977, and at
all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Charging Party as the exclusive bargaining
representative, although the Union has requested
and is requesting it to do so. On December 30, 1977.
Respondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint. The Respondent admits all the factual
allegations of the complaint, including its refusal to
recognize and bargain with the Union. Respondent
denies only those paragraphs which relate to the un-
derlying representation case and which allege that a
majority of the employees of Respondent in the unit
described in the complaint designated and selected
the Union as their representative for the purposes of
collective bargaining and that the Union has been,
and is, the representative of a majority of the em-
Official notice is taken of the record in the representation proceeding.
Case 22 -RC-840, as the term "record" is defined in Secs. 102.68 and
102.69(g) of the Board's Rules and Regulations. Series 8, as amended See
1. T Electrovs.rrtms, In.. 166 NL.RB 938 (1967), enfd. 388 F 2d 683 (' A. 4.
1968); Golden Agi Beverage Co.. 167 NLRB 151 (1967), enfd. 415 1 2d 26
(C.A. 5. 1969): Inierty'pe Co v. Penello, 269 F.Supp. 573 (D.CVa.. 1967).
Follert (orp., 164 NLRB 378 (1967). enfd. 397 F. 2d 91 (('.A 7. 19681. Sec.
9(d) of the NLRA, as amended.
ployees. Respondent also denies that it violated Sec-
tion 8(a)(5) and (1) of the Act.
On February 27, 1978, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment and memorandum in support
thereof, and submitted in effect that Respondent in
its answer was attempting to relitigate issues which
had been raised and litigated in the representation
case and in a subsequent unfair labor practice pro-
ceeding. 2 On March 6, 1978, the Board issued an or-
der transferring the proceedings to the Board and
Notice To Show Cause why the General Counsel's
Motion for Summary Judgment should not be grant-
ed. Respondent thereafter, on March 18, 1978, filed a
memorandum in opposition to the Motion for Sum-
mary Judgment.
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 au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
As reflected above, Respondent admits all the fac-
tual allegations of the complaint, including its refusal
to recognize and bargain with the Union which has
been certified as the collective-bargaining representa-
tive of the employees described in the complaint. In
its response to the Notice To Show Cause, Respon-
dent admits again that it refused to bargain with the
Union and asserts that the Board's Decision and Or-
der which issued October 18, 1977, is not binding as
determinative of the challenges to the ballots of Ste-
ven Elyard, Victor Webb, and Richard Webb.3 More
specifically, Respondent argues that the Motion for
Summary Judgment should be dismissed or a ruling
with respect thereto be postponed because the ques-
tion of the eligibility of Elyard, V. Webb and R.
Webb to vote in the September 15, 1976, election is
currently pending review in the Third Circuit Court
of Appeals, and that reversal of the Board's finding
that Elyard, V. Webb and R. Webb were discrimina-
torily discharged would not only necessarily invali-
date the Union's certification, but would eliminate
2 uoiiiv Ford. Incorpl rated, 233 NLRB 23 (1977. I he representation case
was consolidated with allegations of violations of Sec. 8ta)(3) and (I) for
hearing. The Board thereafter overruled all challenges and found the viola-
tions alleged Amalgamated Local Union No 355. the Charging Party
herein. was subsequently certified
In its Decision and Order, 7'omi Ford Ineorporated. supra, the Board
adopted the Administrative Law Judge's findings and recommendations
and directed the Regional Director to open and count the challenged ballots
cast by Elyard, V. Webb and R. Webb and prepare and cause to be served
on the parties a revised talls of isllots and issue an appropriate certifica-
tion. We agreed therein that these employees had been discriminatoril) dis-
charged.
236 NLRB No. 47
424
TOM'S FORD INCORPORATED
the concomitant duty of Respondent to bargain,
which is the basis of the present complaint. We find
no merit in Respondent's contentions, "for it is well
settled that the pendency of collateral litigation does
not suspend the duty to bargain under Section
8(a)(5)." 4 Accordingly, the pendency in the court of
appeals of Respondent's petition to review our earlier
Decision is no defense to its admitted refusal to bar-
gain with the certified representative of its service
and parts department unit employees.
Clearly by its answer to the complaint and more
specifically by its denials, in whole or in part, of the
allegations of the complaint and the arguments pro-
pounded in its response to the Notice To Show
Cause, Respondent is attempting to relitigate the
same issues which it raised in Cases 22 CA-7103 and
22-RC-6840.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or special
circumstances a respondent in a proceeding alleging
a violation of Section 8(a)(5) is not entitled to reliti-
gate 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 consoli-
dated proceeding, and Respondent does not offer to
adduce at a hearing any newly discovered or previ-
ously unavailable evidence, nor does it allege that
any special circumstances exist herein which would
require the Board to reexamine the decision made in
the consolidated proceeding. We therefore find that
Respondent has not raised any issue which is proper-
ly litigable in this unfair labor practice proceeding.
We shall, accordingly, grant the motion for Summary
Judgment. 6
On the basis of the entire record. the Board makes
the following:
FINDINGS OF FA(TI
I THE BtLSINESS OF THEl RISPONI)ENI
At all times material herein, Respondent, a New
K4 eller Aluminum Chairs Southern. In., and /eller ladders Southern, In M.
subsidiaries of Keller Industries. Inc.. 173 NLRB 947 (1968). citing In fn. 14,
Board and court decisions. See also G(reat Dune Trailers. Ins . 191 NL RB 6
(1971). Poria-Kamp Manufacturing Company, Incs 189 NLRB 899 (1971 1
and Sec. 10(g) of the Act which prosides: i'he commencement of proceed-
ings under subsection (e) or (f) of this section shall not. unless speclfhall)
ordered by the court, operate as a stav of the Board's order"
See Pittsburgh Plate Glass Co v. NI RB, 313 S. 146, 162 11941)
Rules and Regulations of the Board. Sees 102.671f) and 102.69(c).
6 The General Counsel's request for expenses incurred in the investitgatio
and conduct of this case, and related expenses incurred. is denied ais we do
not find Respondent's defense herein to be frivolsous. Heck A's In . 215
NL.RB 765 11974)1 Amsterdam Prinsing and litho (Corp. 223 NL.RB 370
11976). enfd. tub nosnt l.cal 259. Graphic .4rts Internation.ll I nion. 4 l'1
C(0 s NI.1.R B, 559 F 2d 187 (C A D.(C. 1977)
Jersey corporation, has maintained its principal of-
fice and place of business at 200 Route 35, Keyport,
New Jersey, and has been continuously engaged at
this location in the retail sale and servicing of new
and used automobiles. Respondent's Keyport facility
is the only facility involved in this proceeding.
In the course and conduct of Respondent's busi-
ness operations during the previous 12 months, said
operations being representative of its operations at
all times material herein, Respondent derived gross
revenue in excess of $500,000 from the sale and ser-
vicing of new and used automobiles. During this
same period, Respondent purchased and caused to
be shipped to its Keyport, New Jersey, facility auto-
mobiles valued in excess of $50,000, and which auto-
mobiles were shipped to said location directly from
States of the United States other than the State of
New Jersey.
We find, on the basis of the foregoing, that Re-
spondent 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 juris-
diction herein.
II. THE LABOR ORGANIZATION INVOLVED
Amalgamated Local Union No. 355, is a labor or-
ganization within the meaning of Section 2(5) of the
Act.
111 TIIE UNFAIR LABOR PRACTICES
A. The Represenrarion Proceeding
1. 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 de-
partment and parts department employees em-
ployed by the Respondent at its 200 Route 35,
Keyport. New Jersey, location, but excluding all
new- and used-car sales employees, office cleri-
cal employees, professional employees, guards
and supervisors as defined in the Act.
2. The certification
On September 15, 1976, a majority of the employ-
ees of Respondent in said unit, in a secret ballot elec-
tion conducted under the supervision of the Regional
Director for Region 22, designated the Union as their
representative for the purpose of collective bargain-
425
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on November 11, 1977, 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 Refuisal
Commencing on or about November 16, 1977. and
all times thereafter, the Union has requested the Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the
employees in the above-described unit. Commencing
on or about November 18, 1977. and continuing at
all times thereafter to date, the Respondent has re-
fused, and continues to refuse, to recognize and bar-
gain with the Union as the exclusive representative
for collective bargaining of all employees in said
unit.
Accordingly, we find that Respondent has, since
November 18. 1977, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and ( 1) of
the Act.
IV THE EFFi-(F1 O-IF IHE UNFAIR LABOR PRA( I('I-S I'PON'
(OMMlERCE
The activities of Respondent, set forth in section
111, above, occurring in connection with the opera-
tions described in section 1, above, have a close, inti-
mate, 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 mean-
ing of Section 8(a)(5) and (I) 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 ap-
propriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate 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
(C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Bur-
nett Construction Companyr, 149 NLRB 1419, 1421
(1964), enfd. 350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCL.USIONS OF LAW
1. Tom's Ford Incorporated is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Amalgamated Local Union No. 355 is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All full-time and regular part-time service de-
partment employees and parts department employ-
ees employed by the Respondent at its 200 Route 35,
Keyport, New Jersey, location, but excluding all
new- and used-car sales employees, office clerical
employees, professional employees 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 November 11, 1977, the above-named la-
bor organization has been and now is the certified
and exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9 (a) of
the Act.
5. By refusing on or about November 18, 1977,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the employees
of Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor prac-
tices 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 has engaged in and
is engaging in unfair labor practices within the mean-
ing 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 Re-
426
TOM'S FORD INCORPORATED
lations Board hereby orders that the Respondent,
Tom's Ford Incorporated. Keyport, New Jersey, 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 con-
ditions of employment with Amalgamated Local
Union No. 355 as the exclusive bargaining represen-
tative of its employees in the following appropriate
unit:
All full-time and regular part-time service de-
partment and parts department employees em-
ployed by the Respondent at its 200 Route 35,
Keyport, New Jersey, location, but excluding all
new- and used-car salesmen, office clerical em-
ployees, professional employees, guards and
supervisors as defined in the Act.
(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 under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at 200 Route 35, Keyport, New Jersey,
copies of the attached notice marked "Appendix.' 7
Copies of said notice, on forms provided by the Re-
gional Director for Region 22, after being duly
signed by Respondent's representative, shall be post-
ed by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
In the event that this Order is enforced by a Judgment of a United
States ( ourt 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."
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 22. in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
APPENDIX
Noric([i To EMPL.OYEE S
PosIED BY ORDER 01: I IF.
NAIIO()AI LABOR RFIA-riONS BOARD
An Agency of the United States Government
WF will Nor refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Amal-
gamated Local Union No. 355, as the exclusive
representative of the employees in the bargain-
ing unit described below.
WI, \'I.L 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.
Wt- wiill upon request, bargain with the
above-named Union, as the exclusive represen-
tative of all employees in the bargaining unit de-
scribed below, with respect to rates of pay. wag-
es, hours, and other terms and conditions of
employment, and, if an understanding is
reached, embody such understanding in a signed
agreement. The bargaining unit is:
All full-time and regular part-time service de-
partment and parts department employees
employed by the Respondent at its 200 Route
35, Keyport, New Jersey, location, but exclud-
ing all new- and used-car sales employees, of-
fice clerical employees, professional employ-
ees, guards and supervisors as defined in the
Act.
ToMws FoRD IN( ORPORATED
427