Winer Motors, Inc.

National Labor Relations Board - Board Decisions

Apr 25, 1980

249 N.L.R.B. 80 (N.L.R.B. 1980)

0O DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Winer Motors, Inc. and Brewery and Soft Drink
Workers, Liquor Drivers and New and Used
Car Workers, Local 1040, affiliated with the In-
ternational Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Case 39-CA-59 (formerly 2-CA-16875)
April 25, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
Upon a charge filed on November 2, 1979, by
Brewery and Soft Drink Workers, Liquor Drivers
and New and Used Car Workers, Local 1040, affili-
ated with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, and duly served
on Winer Motors, Inc., herein called Respondent,
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 2,
issued a complaint on November 29, 1979, against
Respondent, alleging that Respondent had engaged
in and was engaging in unfair labor practices af-
fecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Na-
tional Labor Relations Act, as amended. Copies of
the charge and 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
complaint alleges in substance that on October 5,
1979, following a Board election in Case 2-RC-
18277 the Union was duly certified as the exclusive
collective-bargaining representative of Respond-
ent's employees in the unit found appropriate;' and
that, commencing on or about October 22, 1979,
and at all times thereafter, Respondent has refused,
and continues to date to refuse, to bargain collec-
tively with the Union as the exclusive bargaining
representative, although the Union has requested
and is requesting it to do so. On December 7, 1979,
Respondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint. Respondent admits receipt of the
charge filed by the Union on November 2, 1979,
and that it meets the Board's jurisdictional stand-
ards. Respondent admits the supervisory status of
Harold Winer and Allan Winer. Respondent denies
that the employees designated by the Regional Di-
Official notice is taken of the record in the representation proceed-
ing, Case 2-RC 18277, as the term "record" is defined in Secs. 102.68
and 102.6 9 (g) of the Board's Rules and Regulations, Series 8, as amended.
See LIV 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 NLRIB 378 (1967), enfd. 397 F.2d 91
(7th Cir 1968); Sec. 9(d) (of the NLRA, as amended.
249 NLRB No. 16
rector in his Decision and Direction of Election
constitute an appropriate bargaining unit. Respond-
ent denies that a majority of employees within said
unit selected the Union as their bargaining repre-
sentative and that the Union has been and is now
the exclusive collective-bargaining representative
of the employees in said unit. Respondent denies
that the Union requested Respondent to recognize
it as the exclusive collective-bargaining representa-
tive of the employees and to bargain collectively
with the Union. Respondent denies that it refused,
and continues to refuse, to recognize and bargain
with the Union as the exclusive collective-bargain-
ing representative, and further denies the conclu-
sory 8(a)(5) and (1) allegations.
On February 7, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on February
13, 1980, 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-
mary Judgment should not be granted. Respondent
thereafter filed a brief in response to Notice To
Show Cause.
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
In its brief in response to the Notice To Show
Cause, Respondent attacks the Union's certification
on the basis that the Board has ignored an agree-
ment between the parties and refused to provide a
forum for Respondent to litigate the issue of
whether it had properly discharged nine employees
prior to the filing of the representation petition.
Review of the record herein reveals that the nine
employees were discharged on March 7, 1979. The
Union filed the petition in Case 2-RC-18277 and
an unfair labor practice charge in Case 2-CA-
16306 on March 12, 1979. On March 14, 1979, Re-
spondent and Petitioner entered into an agreement
in the Superior Court of Connecticut whereby Re-
spondent reinstated the discharged employees and
Petitioner agreed to stop picketing, pending the
outcome of the unfair labor practice charge. It was
further provided that the representation petition
would be held in abeyance until the unfair labor
practice charge was resolved. On March 26, 1979,
the Acting Regional Director granted the Union's
request to withdraw the unfair labor practice
charge and a hearing in the representation case
took place on March 30, 1979. The Regional Di-
WINER MOTOR, INC. 81
rector issued her Decision and Direction of Elec-
tion on April 24, 1979, in which she found, inter
alia, that the Board was not a party to, and not
bound by, the March 14 agreement; that the appro-
priate unit included the reinstated employees; and
that it is the Board's obligation to proceed with the
representation matter. On May 7, 1979, Respondent
filed a request for review of the Regional Direc-
tor's Decision and Direction of Election, which
was denied by the Board on May 21, 1979, as it
raised no substantial issues warranting review. The
election was held on June 1, 1979. At the conclu-
sion of the balloting, the tally revealed that three
votes had been cast for, and three votes had been
cast against Petitioner. There were nine challenged
ballots, eight of which were filed by Respondent
and concerned the ballots of the employees who
were reinstated under terms of the March 14 agree-
ment. On June 5, 1979, Respondent filed timely ob-
jections to the conduct of the election. On July 13,
1979, the Acting Regional Director issued a Sup-
plemental Decision on Objections and Challenges,
overruling Respondent's objections and challenges
and ordering that all nine challenged ballots be
opened and counted and that a revised tally issue.
Respondent filed a request for review of the sup-
plemental decision on July 25, 1979, which was
denied by the Board on September 5, 1979. The re-
vised tally of ballots issued on September 27, 1979,
revealed that nine votes were cast for, and six
votes were cast against Petitioner. On October 5,
1979, Petitioner was certified as representative of
the employees.
Following the Union's requests, by letters dated
October 11 and 19, 1979, that Respondent engage
in collective-bargaining negotiations with the
Union, Respondent, by letter dated October 22,
1979, refused to bargain collectively with the
Union.
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
to relitigate issues which were or could have been
litigated in a prior representation proceeding.2
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
I See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs, 102.67(0 and 102.69(c).
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 a Connecticut corporation en-
gaged in the retail sale and service of new and used
foreign and domestic automobiles located in Strat-
ford, Connecticut. In the course of its business op-
erations within the State of Connecticut, Respond-
ent annually purchases goods and services valued
in excess of $50,000 directly from sources located
outside the State of Connecticut and annually de-
rives gross revenues in excess of $500,000.
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.
11. THE LABOR ORGANIZATION INVOLVED
Brewery and Soft Drink Workers, Liquor Driv-
ers and New and Used Car Workers, Local 1040,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, is a labor organization within the
meaning of Section 2(5) of the Act.
II. 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 full-time and regular part-time new and
used, foreign and domestic automobile sales-
persons employed by the Employer, excluding
office clerical employees, service and mainte-
nance employees, guards, and supervisors as
defined in the Act.
2. The certification
On June 1, 1979, 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 2, designated the Union as
their representative for the purpose of collective
bargaining with Respondent. The Union was certi-
fied as the collective-bargaining representative of
WINER MOTOR, INC. SI
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees in said unit on October 5, 1979, and
the Union continues to be such exclusive repre-
sentative within the meaning of Section 9(a) of the
Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about October 11 and 19,
1979, and at all times thereafter, the Union has re-
quested Respondent to bargain collectively with it
as the exclusive collective-bargaining representative
of all the employees in the above-described unit.
Commencing on or about October 22, 1979, and
continuing at all times thereafter to date, Respond-
ent has refused, and continues to refuse, to recog-
nize and bargain with the Union as the exclusive
representative for collective bargaining of all em-
ployees in said unit.
Accordingly, we find that Respondent has, since
October 22, 1979, 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
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. Winer Motors, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Brewery and Soft Drink Workers, Liquor
Drivers and New and Used Car Workers, Local
1040, affiliated with the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All full-time and regular part-time new and
used, foreign and domestic automobile salespersons
employed by the Employer, excluding office cleri-
cal employees, service and maintenance employees,
guards, and supervisors as defined in the Act, con-
stitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b)
of the Act.
4. Since October 5, 1979, 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 October 22, 1979, and
at all times thereafter, to bargain collectively with
the above-named labor organization as the exclu-
sive 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, 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)(l) 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,
WINER MOTOR, INC. 83
Winer Motors, Inc., Stratford, Connecticut, its offi-
cers, 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
conditions of employment with Brewery and Soft
Drink Workers, Liquor Drivers and New and Used
Car Workers, Local 1040, affiliated with the Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the ex-
clusive bargaining representative of its employees
in the following appropriate unit:
All full-time and regular part-time new and
used, foreign and domestic automobile sales-
persons employed by the Employer, excluding
office clerical employees, service and mainte-
nance employees, guards, and supervisors 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 Stratford, Connecticut, place of
business copies of the attached notice marked "Ap-
pendix."s Copies of said notice, on forms provided
by the Regional Director for Region 2, 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 Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
' 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 Relations Board."
(c) Notify the Regional Director for Region 2, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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 Brewery and Soft Drink Workers, Liquor
Drivers and New Car Workers, Local 1040,
affiliated with the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive repre-
sentative of the employees in the bargaining
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 full-time and regular part-time new and
used, foreign and domestic automobile sales-
persons employed by the Employer, excluding
office clericals, service and maintenance em-
ployees, guards, and supervisors as defined in
the Act.
WINER MOTORS, INC.
WINER MOTOR, INC. 3