Toyota of Walnut Creek, Inc.

National Labor Relations Board - Board Decisions

Jun 3, 1981

256 N.L.R.B. 341 (N.L.R.B. 1981)

TOYOTA OF WALNUT CREEK, INC. 341
Toyota of Walnut Creek, Inc. and Automobile Sales-
men's Union, Local No. 1095, affiliated with
United Food and Commercial Workers, AFL-
CIO. Case 32-CA-3322
June 3, 1981
DECISION AND ORDER
Upon a charge filed on January 12, 1981, by
Automobile Salesmen's Union, Local No. 1095, af-
filiated with United Food and Commercial Work-
ers, AFL-CIO, herein called the Union, and duly
served on Toyota of Walnut Creek, Inc., herein
called Respondent, the General Counsel of the Na-
tional Labor Relations Board, by the Regional Di-
rector for Region 32, issued a complaint on Janu-
ary 28, 1981, against Respondent, alleging that Re-
spondent 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 the com-
plaint and notice of hearing before an administra-
tive law judge were duly served on the parties to
this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on December
16, 1980, following a Board election in Case 32-
RC-1051, the Union was duly certified as the ex-
clusive collective-bargaining representative of Re-
spondent's employees in the unit found appropri-
ate;' and that, commencing on or about December
22, 1980, and at all times thereafter, Respondent
has refused, and continues to date to refuse, to bar-
gain collectively with the Union as the exclusive
bargaining representative, although the Union has
requested and is requesting it to do so. On Febru-
ary 9, 1981, Respondent filed its answer to the
complaint admitting in part, and denying in part,
the allegations in the complaint.
On March 16, 1981, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. 2 Subsequently, on March 19,
1981, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
Official notice is taken of the record in the representation proceed-
ing, Case 32-RC-1051, 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 LTV Electrosystems. Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683
(4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415
F.2d 26 (5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp. 573
(D.C.Va. 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91
(7th Cir. 1968); Sec. 9(d) of the NLRA, as amended.
2 On March 23, 1981, the Union filed with the Board a document in
which it joined in the General Counsel's motion for summary judgment,
and requested attorney's fees. We hereby deny the Union's request for
attorney's fees as lacking in merit. See Tiidee Products Inc, 194 NLRB
1234, 1236 (1972).
256 NLRB No. 52
mary Judgment should not be granted. Respondent
thereafter filed a response to the Notice To Show
Cause.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its answer to the complaint and its response to
the Notice To Show Cause, Respondent essentially
contests the validity of the Union's certification.
Specifically, Respondent contends that the Board
erred in overruling its objections to the election. In
the Motion for Summary Judgment, the General
Counsel maintains that Respondent is attempting to
relitigate the issues it raised in the related represen-
tation proceeding. We agree with the General
Counsel.
Review of the record herein, including the
record in Case 32-RC-1051, reveals that in the
election conducted on June 2, 1980, there were five
votes cast for, and two votes cast against, the
Union; there were three challenged ballots. 3 Re-
spondent filed timely objections to the election al-
leging, inter alia, that the Union made material mis-
representations of fact and law to the employees
and made material inducements and promises to the
employees to encourage their support for the
Union. After investigation, the Acting Regional Di-
rector, on June 30, 1980, issued his report on the
objections and a notice of hearing, finding that Re-
spondent's objections revealed substantial and ma-
terial issues of fact which could best be resolved by
a hearing. On August 11, 1980, following the hear-
ing which was held on July 16 and 17, 1980, the
hearing officer issued his Report and Recommen-
dations on Objections, in which he recommended
that Respondent's ojections be overruled and the
Union be certified. Respondent filed with the
Board timely exceptions to the Hearing Officer's
report and a brief in support thereof. On December
16, 1980, the Board issued a Decision and Certifica-
tion of Representative in Case 32-RC-1051, in
which it adopted the Hearing Officer's findings and
recommendations and certified the Union. It thus
appears that Respondent is attempting to raise
herein issues which were raised and determined in
the underlying representation case.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging a violation of Section 8(a)(5) is not entitled
3 The Acting Regional Director later approved the parties' stipulation
that the challenge to one ballot be sustained, and thus the remaining chal-
lenged ballots were no longer determinative of the election results
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to relitigate issues which were or could have been
litigated in a prior representation proceeding. 4
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
ered 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 is, and has been at all times material
herein, a California corporation with an office and
place of business located at Walnut Creek, Califor-
nia, where it is engaged in the retail business of
selling automobiles. During the past 12 months, Re-
spondent, in the course and conduct of its business
operations, derived gross revenues in excess of
$500,000, and purchased and received goods or
services valued in excess of $5,000 which originat-
ed outside the State of California.
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 jurisdiction herein.
II1. THE LABOR ORGANIZATION INVOLVED
Automobile Salesmen's Union, Local No. 1095,
affiliated with United Food and Commercial Work-
ers, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
III111. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All regular full-time and part-time automobile
salespersons employed by the Employer at its
See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S 146, 162 (1941);
Rules and Regulations of the Board, series 8, as amended, Secs. 102.67(f)
and 102.69(c).
Walnut Creek, California facility; excluding
office clerical employees, professional employ-
ees, all other employees, guards and supervi-
sors as defined in the Act.
2. The certification
On June 2, 1980, 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 32, designated the Union as
their representative for the purpose of collective
bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on December 16, 1980, and the Union continues to
be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about December 22, 1980,
and at all times thereafter, the Union has requested
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about December 22, 1980, and con-
tinuing at all times thereafter to date, Respondent
has refused, and continues to refuse, to recognize
and bargain with the Union as the exclusive repre-
sentative for collective bargaining of all employees
in said unit.
Accordingly, we find that Respondent has, since
December 22, 1980, 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, Respond-
ent 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 oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
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
TOYOTA OF WALNUT CREEK, INC. 343
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 ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate 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. Toyota of Walnut Creek, Inc., is an employer
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Automobile Salesmen's Union, Local No.
1095, affiliated with United Food and Commercial
Workers, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All regular full-time and part-time automobile
salespersons employed by the Employer at its
Walnut Creek, California facility; excluding office
clerical employees, professional employees, all
other employees, guards and supervisors as defined
in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
4. Since December 16, 1980, the above-named
labor 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 December 22, 1980,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Re-
spondent 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, Respond-
ent 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 en-
gaged 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 Re-
lations Board hereby orders that the Respondent,
Toyota of Walnut Creek, Inc., Walnut Creek, Cali-
fornia, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Automobile Sales-
men's Union, Local No. 1095, affiliated with
United Food and Commercial Workers, AFL-CIO,
as the exclusive bargaining representative of its em-
ployees in the following appropriate unit:
All regular full-time and part-time automobile
salespersons employed by the Employer at its
Walnut Creek, California, facility; excluding
office clerical employees, professional employ-
ees, all other employees, guards and supervi-
sors as defined in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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 understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its facilities located at Walnut Creek,
California, copies of the attached notice marked
"Appendix." 5 Copies of said notice, on forms pro-
vided by the Regional Director for Region 32,
after being duly signed by Respondent's representa-
tive, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
5 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 32,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
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 Automobile Salesmen's Union, Local No.
1095, affiliated with United Food and Com-
mercial Workers, AFL-CIO, as the exclusive
representative of the employees in the bargain-
ing unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees 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 repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All regular full-time and part-time auto-
mobile salespersons employed by us at our
Walnut Creek, California, facility; excluding
office clerical employees, professional em-
ployees, all other employees, guards, and su-
pervisors as defined in the Act.
TOYOTA OF WALNUT CREEK, INC.