NY-FV, Inc. d/b/a Hassel Volvo of Glen Cove

National Labor Relations Board - Board Decisions

Jan 31, 2014

360 NLRB No. 36 (N.L.R.B. 2014)

360 NLRB No. 36
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.
NY-FV, Inc. d/b/a Hassel Volvo of Glen Cove and
International Association of Machinists & Aero-
space Workers, District Lodge 15, Local Lodge
447. Case 29–CA–116941
January 31, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
This is a refusal-to-bargain case in which the Re-
spondent is contesting the Union’s certification as bar-
gaining representative in the underlying representation
proceeding. Pursuant to a charge filed by the Union on
November 12, 2013, the General Counsel issued the
complaint on December 10, 2013, alleging that the Re-
spondent has violated Section 8(a)(5) and (1) of the Act
by refusing the Union’s request to recognize and bargain
following the Union’s certification in Case 29–RC–
102996. (Official notice is taken of the “record” in the
representation proceeding as defined in the Board’s
Rules and Regulations, Secs. 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.
On December 24, 2013, the General Counsel filed a
Motion for Summary Judgment. On December 27, 2013,
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,
and the General Counsel filed a reply to the Respond-
ent’s response.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
The Respondent admits its refusal to bargain, but con-
tests the validity of the certification on the basis of its
objections to the election in the underlying representation
proceeding.
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.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a domestic cor-
poration, with its principal office and place of business
located at 79 Cedar Swamp Road, Glen Cove, New York
(its Cedar Swamp Road facility), and a facility located at
24 Garvey’s Point Road, Glen Cove, New York (its Gar-
vey’s Point Road facility), has been engaged in the busi-
ness of selling and servicing automobiles and automobile
parts.
During the 12-month period preceding the issuance of
the complaint (a representative period), the Respondent,
in the course and conduct of its business operations, de-
rived gross revenues in excess of $500,000, and has pur-
chased and received at its Cedar Swamp Road facility
goods and materials valued in excess of $5000 directly
from points located outside the State of New York.
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 & Aerospace Workers, District Lodge
15, Local Lodge 447, 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 on May 29,
2013, the Union was certified on September 13, 2013, as
the exclusive collective-bargaining representative of the
employees in the following appropriate unit:
Included: All full-time and regular part-time techni-
cians, service advisors, parts department countermen
and parts department drivers employed by the Re-
spondent at its 79 Cedar Swamp Road and 24 Garvey’s
Point Road locations.
Excluded: All sales employees, office clericals, por-
ters, lot attendants, car washers, parts department man-
agers, service department assistant managers, guards
and supervisors as defined in the Act.
The Union continues to be the exclusive collective-
bargaining representative of the unit employees under
Section 9(a) of the Act.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
B. Refusal to Bargain
Since October 2, 2013, the Union has requested the
Respondent to meet and bargain, and, since October 2,
2013, the Respondent has refused to do so.
We find that this failure and refusal constitutes an un-
lawful 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 about October 2, 2013, to
recognize and bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the appropriate unit, the Respondent has engaged in un-
fair labor practices affecting commerce within the mean-
ing 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 bargain on request with the Union 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); accord: Burnett Construc-
tion Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d
57 (10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied
379 U.S. 817 (1964).
In addition to the customary notice posting remedies,
the General Counsel requests the additional remedy that
the Respondent mail a notice to each unit employee’s
residence. In the absence of any explanation why the
notice mailing remedy is warranted here, we deny the
General Counsel’s request.
ORDER
The National Labor Relations Board orders that the
Respondent, NY-FV, Inc. d/b/a Hassel Volvo of Glen
Cove, Glen Cove, New York, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
International Association of Machinists & Aerospace
Workers, District Lodge 15, Local Lodge 447, as the
exclusive collective-bargaining representative of the em-
ployees 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:
Included: All full-time and regular part-time techni-
cians, service advisors, parts department countermen
and parts department drivers employed by the Re-
spondent at its 79 Cedar Swamp Road and 24 Garvey’s
Point Road locations.
Excluded: All sales employees, office clericals, por-
ters, lot attendants, car washers, parts department man-
agers, service department assistant managers, guards
and supervisors as defined in the Act.
(b) Within 14 days after service by the Region, post at
its Cedar Swamp Road and Garvey’s Point Road facili-
ties in Glen Cove, New York, copies of the attached no-
tice marked "Appendix."1 Copies of the notice, on forms
provided by the Regional Director for Region 29, after
being signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable 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 penden-
cy of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate 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 October 2, 2013.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 29 a sworn certifi-
cation of a responsible official on a form provided by the

1 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.”
3
NY-FV, INC.
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. January 31, 2014
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Philip A. Miscimarra, Member
______________________________________
Kent Y. Hirozawa, 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 recognize and bargain
with International Association of Machinists & Aero-
space Workers, District Lodge 15, Local Lodge 447, as
the exclusive collective-bargaining representative of the
employees 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
listed above.
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:
Included: All full-time and regular part-time techni-
cians, service advisors, parts department countermen
and parts department drivers employed by us at our 79
Cedar Swamp Road and 24 Garvey’s Point Road loca-
tions.
Excluded: All sales employees, office clericals, por-
ters, lot attendants, car washers, parts department man-
agers, service department assistant managers, guards
and supervisors as defined in the Act.
NY-FV, INC. D/B/A HASSEL VOLVO OF GLEN
COVE