New Country Audi, Inc.

National Labor Relations Board - Board Decisions

Mar 2, 2010

355 NLRB No. 16 (N.L.R.B. 2010)

355 NLRB No. 16
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.
New Country Audi, Inc. and International Associa-
tion of Machinists & Aerospace Workers, AFL–
CIO, District Lodge 26. Case 34–CA–12563
March 2, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
This is a refusal-to-bargain case in which the Respon-
dent is contesting the Union’s certification as bargaining
representative in the underlying representation proceed-
ing. Pursuant to a charge filed on January 4, 2010, the
General Counsel issued the complaint on January 8,
2010, alleging that the Respondent has violated Section
8(a)(5) and (1) of the Act by refusing the Union’s request
to bargain following the Union’s certification in Case
34–RC–2320. (Official notice is taken of the “record” in
the representation proceeding as defined in the Board’s
Rules and Regulations, Sections 102.68 and 102.69(g);
Frontier Hotel, 265 NLRB 343 (1982).) The Respondent
filed an answer admitting in part and denying in part the
allegations in the complaint, and asserting affirmative
defenses.1
On January 25, 2010, the General Counsel filed a Mo-
tion for Summary Judgment and Memorandum in Sup-
port of Motion. On January 26, 2010, the Board issued
an order transferring the proceeding to the Board and a
Notice to Show Cause why the motion should not be
granted. The Respondent filed a response.

1 The Respondent’s answer denies sufficient knowledge concerning
the filing and service of the charge, but admits that it received a copy of
the charge on January 7, 2010.
Ruling on Motion for Summary Judgment2
The Respondent admits its refusal to bargain, but con-
tests the validity of the certification based on its objec-
tions to the election in the representation proceeding.3
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding. The Respondent does not offer to ad-
duce at a hearing any newly discovered and previously
unavailable evidence, nor does it allege any special cir-
cumstances that would require the Board to reexamine
the decision made in the representation proceeding. We
therefore find that the Respondent has not raised any
representation issue that is properly litigable in this un-
fair labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord-
ingly, we grant the Motion for Summary Judgment.4
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation
with a facility located in Greenwich, Connecticut (the
Greenwich facility), has been engaged in the retail sale
and service of automobiles.5

2 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act. See Teamsters Local 523 v. NLRB, 590 F.3d
849 (10th Cir. 2009); Narricot Industries, L.P. v. NLRB, 587 F.3d 654
(4th Cir. 2009); Snell Island SNF LLC v. NLRB, 568 F.3d 410 (2d Cir.
2009), petition for cert. filed 78 U.S.L.W. 3130 (U.S. Sept. 11, 2009)
(No. 09-328); New Process Steel v. NLRB, 564 F.3d 840 (7th Cir.
2009), cert. granted 130 S.Ct. 488 (2009); Northeastern Land Services
v. NLRB, 560 F.3d 36 (1st Cir. 2009), petition for cert. filed 78
U.S.L.W. 3098 (U.S. Aug. 18, 2009) (No. 09-213). But see Laurel
Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir.
2009), petition for cert. filed 78 U.S.L.W. 3185 (U.S. Sept. 29, 2009)
(No. 09-377).
3 In addition to denying that the Union was properly certified, the
Respondent maintains that the Board was not properly constituted
under Sec. 3(b) of the Act and, thus, did not have the authority to
schedule or conduct the July 17, 2009 election, deny the Respondent’s
exceptions to the Regional Director’s Report on Objections, or issue its
November 18, 2009 Decision and Certification of Representative.
However, this defense is without merit for the reasons stated in fn. 2.
4 Thus, we deny the Respondent’s request that the complaint be dis-
missed in its entirety.
5 In its answer to the complaint, the Respondent states that it is a
New York State corporation. To the extent that the Respondent may
deny that it is a Connecticut corporation, as alleged in the complaint,
we find it unnecessary to resolve this issue because the Respondent
admits that it is a corporation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
During the 12-month period ending December 31,
2009, the Respondent, in conducting its business opera-
tions described above, derived gross revenues in excess
of $500,000, and purchased and received at its Green-
wich facility goods valued in excess of $50,000 directly
from points located outside the State of Connecticut.
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 the Union, International Associa-
tion of Machinists and Aerospace Workers, AFL–CIO,
District Lodge 26, is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the representation election held July 17,
2009, the Union was certified on November 18, 2009, as
the exclusive collective-bargaining representative of the
employees in the following appropriate unit:
All full-time and regular part-time service technicians
employed by the Employer at its Greenwich, Connecti-
cut Audi facility; but excluding all other employees, of-
fice clerical employees, and guards, professional em-
ployees, and supervisors as defined in the Act.
The Union continues to be the exclusive collective-
bargaining representative of the unit employees under Sec-
tion 9(a) of the Act.
B. Refusal to Bargain
By letter dated December 14, 2009, the Union re-
quested that the Respondent recognize and bargain with
it as the exclusive collective-bargaining representative of
the unit. By letter dated December 24, 2009, the Re-
spondent advised the Union that it was refusing to recog-
nize and bargain with the Union. We find that this fail-
ure and refusal constitutes an unlawful failure and refusal
to recognize and bargain with the Union in violation of
Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By failing and refusing since December 24, 2009, to
recognize and bargain with the Union as the exclusive
collective-bargaining representative of employees in the
appropriate unit, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning
of Section 8(a)(5) and (1) and Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, we shall order it to cease and
desist, to recognize and bargain on request with the Un-
ion, and, if an understanding is reached, to embody the
understanding in a signed agreement.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by law, we shall construe the initial period of the certifi-
cation as beginning the date the Respondent begins to
bargain in good faith with the Union. Mar-Jac Poultry
Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB
226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379 U.S. 817 (1964); Burnett Construction Co.,
149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th
Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, New Country Audi, Inc., Greenwich, Con-
necticut, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
International Association of Machinists and Aerospace
Workers, AFL–CIO, District Lodge 26, as the exclusive
collective-bargaining representative of the employees in
the bargaining unit.
(b) 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) On request, bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit on terms and conditions of
employment, and if an understanding is reached, embody
the understanding in a signed agreement:
All full-time and regular part-time service technicians
employed by the Employer at its Greenwich, Connecti-
cut Audi facility; but excluding all other employees, of-
fice clerical employees, and guards, professional em-
ployees, and supervisors as defined in the Act.
(b) Within 14 days after service by the Region, post at
its facility in Greenwich, Connecticut, copies of the at-
tached notice marked “Appendix.”6 Copies of the notice,
on forms provided by the Regional Director for Region
34, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees

6 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.”
NEW COUNTRY AUDI, INC. 3
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since December
24, 2009.
(c) 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. March 2, 2010
Wilma B. Liebman, Chairman
Peter C. Schaumber, 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
violated 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 recognize and bargain
with International Association of Machinists and Aero-
space Workers, AFL–CIO, District Lodge 26, as the ex-
clusive collective-bargaining representative of the em-
ployees in the bargaining unit.
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, on request, bargain with the Union and put
in writing and sign any agreement reached on terms and
conditions of employment for our employees in the fol-
lowing bargaining unit:
All full-time and regular part-time service technicians
employed by us at our Greenwich, Connecticut Audi
facility; but excluding all other employees, office cleri-
cal employees, and guards, professional employees,
and supervisors as defined in the Act.
NEW COUNTRY AUDI, INC.