Elmhurst Lincoln Mercury

National Labor Relations Board - Board Decisions

Sep 21, 2010

355 NLRB No. 186 (N.L.R.B. 2010)

355 NLRB No. 186
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Elmhurst Lincoln Mercury and Automobile Mechan-
ics Local 701, International Association of Ma-
chinists and Aerospace Workers, AFL–CIO.
Case 13–CA–45873
September 21, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS PEARCE
AND HAYES
The Acting General Counsel seeks a default judgment
in this case on the ground that the Respondent has failed
to file an answer to the complaint. Upon a charge filed
by the Union on February 26, 2010, the General Counsel
issued the complaint on April 28, 2010, against Elmhurst
Lincoln Mercury, the Respondent, alleging that it has
violated Section 8(a)(5) and (1) of the Act. The Respon-
dent failed to file an answer.
On June 24, 2010, the Acting General Counsel filed a
Motion for Default Judgment with the Board. Thereaf-
ter, on June 28, 2010, the Board issued an order transfer-
ring the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The Re-
spondent filed no response. The allegations in the mo-
tion are therefore undisputed.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Default Judgment
Section 102.20 of the Board’s Rules and Regulations
provides that the allegations in the complaint shall be
deemed admitted if an answer is not filed within 14 days
from service of the complaint, unless good cause is
shown. In addition, the complaint affirmatively stated
that unless an answer was received by May 12, 2010, the
Board may find, pursuant to a motion for default judg-
ment, that the allegations in the complaint are true. Fur-
ther, the undisputed allegations in the Acting General
Counsel’s motion disclose that the Region, by letter
dated May 19, 2010, notified the Respondent that unless
an answer was received by close of business on May 25,
2010, a motion for summary judgment would be filed.
In the absence of good cause being shown for the fail-
ure to file a timely answer, we grant the Acting General
Counsel’s Motion for Default Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Delaware cor-
poration, with an office and place of business in Elm-
hurst, Illinois, the Respondent’s facility, has been en-
gaged in the sale and service of new and used automo-
biles.
During the past calendar year, a representative period,
the Respondent, in conducting the business described
above, derived gross revenues in excess of $500,000, and
purchased and received at its facility goods valued in
excess of $5000 directly from points outside the State of
Illinois.
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 Automobile Mechanics Local 701,
International Association of Machinists and Aerospace
Workers, AFL–CIO, the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times the following individuals held the
positions set forth opposite their respective names and
have been supervisors of the Respondent within the
meaning of Section 2(11) of the Act and agents of the
Respondent within the meaning of Section 2(13) of the
Act:
David Mears Chairman
John Moroni President
The following employees of the Respondent (the unit),
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time Journeyman Techni-
cians, Body Shop Technicians, apprentices, lube rack
technicians, and semiskilled technicians.
At all material times, the Respondent has been an em-
ployer-member of the New Car Dealer Committee (the
Committee), a multiemployer association, one purpose of
which is to represent its employer-members in negotiat-
ing and administering collective-bargaining agreements
with the Union.
At all material times, the Respondent has authorized
the Committee to represent it in negotiating and adminis-
tering collective-bargaining agreements with the Union.
At all material times, the Union has been the desig-
nated exclusive bargaining representative of the multi-
employer association unit and has been recognized as
such by the Respondent. This recognition has been em-
bodied in successive collective-bargaining agreements,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
the most recent of which is effective August 1, 2009,
through July 31, 2013 (the 2009–2013 agreement).
At all material times, based on Section 9(a) of the Act,
the Union has been the exclusive collective-bargaining
representative of the multiemployer association unit for
purposes of collective bargaining with respect to rates of
pay, wages, hours of employment and other terms and
conditions of employment.
Since about September 2009, and various times there-
after, the Respondent unilaterally ceased paying unit em-
ployees wages required pursuant to the 2009–2013
agreement.
At all times since August 26, 2009, the Respondent has
failed to make contributions to the Union’s welfare fund
and pension fund on behalf of unit employees for all
hours worked by unit employees.
The subjects set forth above relate to wages, hours, and
other terms and conditions of employment of the unit and
are mandatory subjects for the purposes of collective
bargaining.
The Respondent engaged in the conduct described
above notwithstanding that these subjects are required by
the 2009–2013 agreement and without the Union’s con-
sent.
About December 11, 2009, the Respondent repudiated
the 2009–2013 agreement, and has since refused to abide
by any of its terms.
CONCLUSION OF LAW
By the conduct described above, the Respondent has
been failing and refusing to bargain collectively and in
good faith with the exclusive collective-bargaining repre-
sentative of its employees within the meaning of Section
8(d) of the Act, and has thereby engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tion 8(a)(5) and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent has violated Section 8(a)(5)
and (1) by failing to make contractually-required contri-
butions to the Union’s welfare fund and pension fund on
behalf of the unit employees since August 26, 2009, fail-
ing to pay employees contractually-required wages since
September 2009, and repudiating the 2009–2013 agree-
ment by failing and refusing to abide by any of its terms
since December 11, 2009, we shall order the Respondent
to honor the terms of the 2009–2013 agreement, and to
make the unit employees whole for any loss of earnings
and other benefits attributable to its unlawful conduct.
Backpay shall be computed in accordance with Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444
F.2d 502 (6th Cir. 1971), with interest as prescribed in
New Horizons for the Retarded, 283 NLRB 1173
(1987).
1
Further, we shall order the Respondent to make all
contractually-required welfare fund and pension fund
contributions that have not been made since August 26,
2009, including any additional amounts due the funds in
accordance with Merryweather Optical Co., 240 NLRB
1213, 1216 fn. 6 (1979).
2
We shall also order the Re-
spondent to reimburse unit employees for any expenses
ensuing from its failure to make the required contribu-
tions, as set forth in Kraft Plumbing & Heating, 252
NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir.
1981), such amounts to be computed in the manner set
forth in Ogle Protection Service, supra, with interest as
prescribed in New Horizons for the Retarded, supra.
ORDER
The National Labor Relations Board orders that the
Respondent, Elmhurst Lincoln Mercury, Elmhurst, Illi-
nois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with Automobile Mechanics Local 701, Inter-
national Association of Machinists and Aerospace Work-
ers, AFL–CIO (the Union), as the exclusive collective-
bargaining representative of the employees in the follow-
ing unit by repudiating the terms and conditions of its
2009–2013 collective-bargaining agreement with the
Union by failing to abide by its terms. The bargaining
unit is:
All full-time and regular part-time Journeyman Techni-
cians, Body Shop Technicians, apprentices, lube rack
technicians, and semiskilled technicians.
(b) Failing to pay unit employees contractually-
required wages.
(c) Failing to make contractually-required contribu-
tions to the Union’s welfare fund and pension fund on
behalf of unit employees.

1 In the complaint, the General Counsel seeks compound interest
computed on a quarterly basis for any backpay or other monetary
awards. Having duly considered the matter, we are not prepared at this
time to deviate from our current practice of assessing simple interest.
See Rogers Corp., 344 NLRB 504 (2005).
2 To the extent that an employee has made personal contributions to
a fund that are accepted by the fund in lieu of the Respondent’s delin-
quent contributions during the period of the delinquency, the Respon-
dent will reimburse the employee, but the amount of such reimburse-
ment will constitute a setoff to the amount that the Respondent other-
wise owes the fund.
ELMHURST LINCOLN MERCURY 3
(d) 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) Honor and comply with the terms and conditions of
the 2009–2013 collective-bargaining agreement with the
Union.
(b) Make whole the unit employees for any loss of
earnings and other benefits they may have suffered as a
result of the Respondent’s repudiation of the 2009–2013
agreement since December 11, 2009, with interest, in the
manner set forth in the remedy section of this decision.
(c) Make whole the unit employees for any loss of
earnings they may have suffered as a result of the Re-
spondent’s failure to pay unit employees wages as re-
quired pursuant to the 2009–2013 agreement since Sep-
tember 2009, with interest, in the manner set forth in the
remedy section of this decision.
(d) Make all contractually-required welfare fund and
pension fund contributions on behalf of all unit employ-
ees that have not been made since August 26, 2009, and
reimburse unit employees for any expenses ensuing from
its failure to make the required contributions, with inter-
est, in the manner set forth in the remedy section of this
decision.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facility in Elmhurst, Illinois, copies of the attached
notice marked “Appendix.”
3
Copies of the notice, on
forms provided by the Regional Director for Region 13,
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-

3 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.”
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 August 26, 2009.
(g) 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.
Dated, Washington, D.C. September 21, 2010
______________________________________
Wilma B. Liebman, Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Brian E. Hayes, 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 bargain collectively and
in good faith with Automobile Mechanics Local 701,
International Association of Machinists and Aerospace
Workers, AFL–CIO (the Union), as the exclusive collec-
tive-bargaining representative of the employees in the
following unit by repudiating the terms and conditions of
our 2009–2013 collective-bargaining agreement with the
Union by failing to abide by its terms. The bargaining
unit is:
All full-time and regular part-time Journeyman Techni-
cians, Body Shop Technicians, apprentices, lube rack
technicians, and semiskilled technicians.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
WE WILL NOT fail to pay unit employees contractually-
required wages.
WE WILL NOT fail to make contractually-required con-
tributions to the Union’s welfare fund and pension fund
on behalf of unit employees.
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 honor and comply with the terms and condi-
tions of our 2009–2013 collective-bargaining agreement
with the Union.
WE WILL make whole our unit employees for any loss
of earnings and other benefits they may have suffered as
a result of our repudiation of our 2009–2013 agreement
since December 11, 2009, with interest.
WE WILL make whole our unit employees for any loss
of earnings they may have suffered as a result of our fail-
ure to pay unit employees wages as required pursuant to
the 2009–2013 agreement since September 2009, with
interest.
WE WILL make all contractually-required welfare fund
and pension fund contributions on behalf of our unit em-
ployees that have not been made since August 26, 2009,
with interest, and WE WILL reimburse our unit employees
for any expenses ensuing from our failure to make the
required contributions, with interest.
ELMHURST LINCOLN MERCURY