Cerullo Motors, Inc.

National Labor Relations Board - Board Decisions

Jul 18, 1980

250 N.L.R.B. 806 (N.L.R.B. 1980)

I).ECISIONS OF NATIONAL. IABOR REL[A'TIONS B()ARI)
Cerullo Motors, Inc. and American Federation of
Grain Millers International Union, AFL-CIO
and its Local Union 110. Case 3-CA-9419
July 18, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING ANt) MIMBI KRS
JENKINS AND PENEI.I O
Upon a charge filed on November 9, 1979, by
American Federation of Grain Millers International
Union, AFL-CIO and its Local Union 110, herein
called the Union, and duly served on Cerullo
Motors, Inc., herein called Respondent, the Gener-
al Counsel of the National Labor Relations Board,
by the Regional Director for Region 3, issued a
complaint on December 12, 1979, against Respond-
ent, alleging that Respondent 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 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 at all times ma-
terial herein the Union has been recognized by Re-
spondent as the exclusive collective-bargaining rep-
resentative of the following employees for the pur-
poses of collective bargaining at its Depew, New
York, facility:
All service employees, including mechanics,
helpers, washers, painters, bodymen, under-
coaters, lubrication men and parts department
employees; excluding all office clerical em-
ployees, salesmen, professional employees,
guards and supervisors as defined in the Act.
The complaint further alleges that on or about
October 12, 1979, the Union and Respondent
reached full and complete agreement with respect
to the terms and conditions of employment of the
employees in the unit described above, to be incor-
porated in a collective-bargaining agreement be-
tween the Union and Respondent. Since October
12, 1979, the Union has requested, and continues to
request, Respondent to execute a written contract
embodying the agreement; and since on or about
October 31, 1979, Respondent has orally refused,
and continues to fail and refuse, to execute such
written agreement.
The General Counsel alleges that Respondent
was duly notified by telephonic communication on
January 22, 1980, and April 11, 1980, that, unless
an answer to the complaint and notice of hearing
250 NLRB No. 124
was forthcoming from Respondent, a Motion for
Summary Judgment would be filed with the Board.
Respondent has not filed an answer to the com-
plaint.
On April 18, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on April 23,
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
has not filed a response to the 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
Sec. 102.20 of the Board's Rules and Regula-
tions, Series 8, as amended, provides, inter alia, that
"The respondent shall, within 10 days from the
service of the complaint, file an answer thereto.
The respondent shall specifically admit, deny, or
explain each of the facts alleged in the complaint
.... .All allegations in the complaint, if no answer
if filed . . . shall be deemed to be admitted to be
true and shall be so found by the Board, unless
good cause to the contrary is shown."
In the instant case Respondent has responded
neither to the Regional Director's complaint nor to
the Board's Notice To Show Cause.
The time within which to file having passed, we
find all allegations in the complaint to be true.
There being no issue in dispute, we grant the
Motion for Summary Judgment on the pleadings.'
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDE Nt
The Employer, Cerullo Motors, Inc., a New
York corporation with its principal office and place
of business in Depew, New York, is engaged in the
retail sale and service of automobiles and related
products. Annually the Employer in the course and
conduct of its business operations sells and distrib-
utes products in excess of $500,000. During the
same period it receives goods valued in excess of
I IAingr! I & Sn1 < a y ln ( Xud u l l r. , m aiLnruptr 1c .
248 NI R13 405 S (t 0 9 tSO ;' Q/ I I., ra/ fl nrllr l 'Irtlz -u d h a h M tBItritz
ti',Idnr. 22( NI RB 1247 1 751
CERUI.L() MO()TORS, INC
$50,000 directly from suppliers located outside the
State of New York.
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.
II. THE LABOR ORGANIZATION INVOLVED
American Federation of Grain Millers Interna-
tional Union, AFL-CIO and its Local Union 110,
is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE UNFAIR L ABOR PRACTICES
On or about October 12, 1979, the Employer and
the Union reached full and complete agreement
concerning the terms and conditions of a collec-
tive-bargaining agreement covering employees in
the following unit which we find to be appropriate:
All service employees, including mechanics,
helpers, washers, painters, bodymen, under-
coaters, lubrication men and parts department
employees; excluding all office clerical em-
ployees, salesmen, professional employees,
guards and supervisors as defined in the Act.
Accordingly we find that the Union is now, and
at all times material herein, has been the exclusive
bargaining representative of the employees in the
unit within the meaning of Section 9(a) of the Act.
Since on or about October 31, 1979, the Employ-
er has refused and continues to refuse to embody
such terms and conditions into a written agree-
ment. Accordingly, we find that the Respondent
has, since October 31, 1979, refused to bargaining
collectively with the Union as the exclusive repre-
sentative of employees in the above-described unit,
and has therefore, since October 31, 1979, and at
all times thereafter, engaged in, and is engaging in,
unfair labor practices within the meaning of Sec-
tion 8(a)(5) of the Act.
IV. THE EFFECT OF THE UNFAIR L.ABOR
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. I Hi RI.N1FI)Y
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, sign
and implement the agreement reached on or about
October 12, 1979, should the Union so request:
comply retroactively to October 12, 1979, with the
terms of that contract, including but not limited to
the provisions relating to wages and other econom-
ic benefits; upon request bargain collectively with
the Union as the exclusive representative of all em-
ployees in the appropriate unit; and make whole its
employees, including any no longer on the payroll,
for any losses suffered by reason of Respondent's
failure to sign and implement the agreement, with
appropriate interest, in the manner prescribed in
Florida Steel Corporation, 231 NLRB 651 (1977).2
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONC USIONS OF LAW
1. Cerullo Motors, Inc., is an employer engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. American Federation of Grain Millers Interna-
tional Union, AFL-CIO and its Local Union 110,
is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. All service employees, including mechanics,
helpers, washers, painters, bodymen, undercoaters,
lubrication men and parts department employees;
excluding all office clerical employees, salesmen,
professional employees, guards, and supervisors as
defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since October 12, 1979, the above-named
labor organization has been the exclusive repre-
sentative of all the employees in the aforesaid ap-
propriate unit for the purposes of collective bar-
gaining within the meaning of Section 9(a) of the
Act.
5. By refusing to sign and implement the con-
tract agreed upon by it and the Union on October
12, 1979, as found herein, Respondent engaged in
unfair labor practices within the meaning of Sec-
tion 8(a)(5) of the Act.
6. By the aforesaid actions Respondent has inter-
fered with, restrained, and coerced, and is interfer-
ing with, restraining, and coercing, employees in
See, g. c rall, . Iis I',humiltng & liring Co,. I IS NI.R , 7tl 1%Q2)
W.ith rpcc( t l the CJ lI.,tin , of interr Jen t kitns ,adIltre to hi
,ic , cxpres,,ed in hi dlsentimg opliion in O/lrmpip, fi'di al (C rp riimn,
250 NI Ru N.- 11 I 8(I )
S0)7
DECISI()NS O() NATIONAL LA()OR RELATIONS IROARI)
the exercise of the rights guaranteed them in Sec-
tion 7 of the Act, and thereby has engaged 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,
Cerullo Motors, Inc., Depew, New York, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing, upon request, to sign and imple-
ment the collective-bargaining agreement reached
between it and American Federation of Grain Mill-
ers International Union, AFL-CIO and its Local
Union 110, on October 12, 1979.
(b) Refusing to bargain collectively with the
above-named Union as the exclusive collective-bar-
gaining representative in the appropriate unit with
respect to their rates of pay, wages, hours, and
other terms and conditions of employment. The ap-
propriate unit is:
All service employees, including mechanics,
helpers, washers, painters, bodymen, under-
coaters, lubrication men and parts department
employees; excluding all office clerical em-
ployees, salesmen, professional employees,
guards, and supervisors as defined in the Act.
(c) 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 the Union's request, sign and imple-
ment retroactively to October 12, 1979, the bar-
gaining contract reached between it and the Union
on October 12, 1979.
(b) Make its employees whole for losses suffered
because of its failure to give effect to such con-
tract, with interest, in the manner prescribed in the
section above intitled "The Remedy."
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(e) Post at its Depew, New York, facility copies
of the attached notice marked "Appendix.":'
Copies of said notice, on forms provided by the
Regional Director for Region 3, 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.
(f) Notify the Regional Director for Region 3, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
' In the event that this Order is enforced by a Judgment of a ULnited
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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse, upon request, to sign
and implement retroactively to October 12,
1979, the collective-bargaining agreement
reached between us and American Federation
of Grain Millers International Union, AFL-
CIO and its Local Union 110, on October 12,
1979.
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with the above-named Union as the exclusive
representative of the employees in the bargain-
ing unit described below.
WE WIL L 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 the Union's request, sign
and implement retroactively to October 12,
1979, the collective-bargaining agreement
reached between us and the Union on October
12, 1979.
WE WI LL make our employees whole for
losses suffered because of our past refusal to
give effect to that contract, plus interest.
WE WIl l, in the event the Union does not
request signing and implementation in accord-
ance with the preceding paragraph, bargain
collectively with the Union, upon request, as
CERUI.I. N1()OT()RS. INC
the exclusive representative of the employees
in the appropriate unit, and embody any resul-
tant understanding in a signed document. The
bargaining unit is:
All service employees, including mechanics,
helpers, washers, painters, bodymen, under-
coaters, lubrication men and parts depart-
ment employees; excluding all office clerical
employees, salesmen, professional employ-
ees, guards, and supervisors as defined in the
Act.
Nothing in this notice is to be construed as re-
quiring us to revert to wage and other benefit
levels below those presently in force.
CFRU I IO MOIORS, INC.
XS()9