Petition — Wright Motors, Inc. v. National Labor Relations Board

Supreme Court brief1976

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Suprer rt. U.S.

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In The |

SUPREME COURT OF THE UNITED STATES:

October Term, 1976

NO. 75-1703

WRIGHT MOTORS, INC.,

Petitioner (Respondent below)

“VS

NATIONAL LABOR RELATIONS BOARD,

Respondent (Petitioner below)

PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED

STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

AND APPENDIX

Joseph A. Yocum

305 Union Federal Building

Evansville, Indiana 47708

Attorney for Plaintiff

KAHN, DEES, DONOVAN & KAHN

305 Union Federal Building

Evansville, Indiana 47708

Of Counsel

Unigraphic, Inc., 1401 N. Fares Ave., Evansville, Ind. 47711, Phone 424-3680

TABLE OF CONTENTS

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PT EENEY 66s NehaaRees sinks ods ren énsedews

QUESTIONS PRESENTED .......ccccvcccccscvcee

CONSTITUTIONAL PROVISIONS AND

Se ED ons eka bs eshecuusnsy cay

1. The Court Below Erroneously and Uncon-

stitutionally Refused to Set Aside an Opinion and

Order of the National Labor Relations Board which

found that relatives of those involved in the operation

and ownership of a closely held corporation could

not vote in a representation election held at Petitioner’s

es aca s ee we bn es eee ee 888

Il. The Court below Erroneously and Uncon-

stitutionally Refused to Set Aside an Opinion and

Order of the National Labor Relations Board which

found that the Unfair Labor Practice Charges filed in

this case were not time barred by the applicable period

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CASES CITED

Continental Baking Company,

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CASES CITED (Cont.)

Page

Foam Rubber City, No. 2 of Flordia, Inc.

167 NLRB 623 (1967) 0.0... ccc ccc ccc ce ccee, 9

International Metal Products Co.,

ee diets ys eldae ks, os ok bel. 9

Leedom v. Kyne,

a )

Local Lodge 1424, Machinists v. N.L.R.B.,

80 S, Ct. 822, 826 (1960) ....................... 12

N.L.R.B. v. Basic Wire Products, Inc.

516 F. 2d 261 (CA-6 1975) ................. 2, 10, 11

N.L.R.B. v. Caravelle Woods Products, Inc.,

ee ee ie be cs Sabie calececs _?

N.L.R.B. v. McCready and Sons, Inc.,

482 F. 2d 872 (CA-6 1973) ...................... 10

N.L.R.B. v. Savair Manufacturing Company,

94 S. Ct. 495, 499-501 ee i i ee ew 8

MISCELLANEOUS

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STATUTES

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Pe IED 606-0600 4e6eteueenssedbeaeswiesdounes 2

I er ee 15

Decision of Court Below ..........cccccceeecees 1A

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APPENDIX SUPREME COURT OF THE UNITED STATES

Chronological List Of Relevant Docket Entries ........... 17 October Term, 1976

seaport Cn Cilesiems onc vccccvescccuscceeucuelnuull 19

Employer's Buceptioms .....cccccccccccccocececece: 26 No.

Decision And Certification Of Representative ........... 30

Exceptions And Motion To Reconsider ................ 34 WRIGHT MOTORS, INC.,

Geter Denying Metiem .occcccccesecsetiiel le 36 Petitioner (Respondent below)

Complaint And Notice Of Hearing ................... 37 ve

ee eee tti‘OS 47 NATIONAL LABOR RELATIONS BOARD,

OY Ls ee ee 5] Respondent (Petitioner below)

Motion And Excoptiog ....ccccccccccccceceeceuccin 61 i

Order Of Court Below - January 20,1976 .............. 63 PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

Judgment - February 25,1976 .......... cc cece cu uce. 65 SEVENTH CIRCUIT

To the Honorable, the Chief Justice of the United States and the

Associate Justices of the Supreme Court of the United States:

The Petitioner, Wright Motors, Inc., (hereafter referred to as

“Wright”) respectfully prays that a writ of certiorari issue to

review the judgment and order of the United States Court of

Appeals for the Seventh Circuit entered in this proceeding on

January 20, 1976.

-2-

OPINION BELOW

Apparently the opinion of the Court of Appeals will not be

published because it issued only as an order of the court and,

absent the caption as No. 75-1514 and the heading as herein,

the opinion is as follows:

“Upon consideration of the record, the briefs, and the oral argu-

ment, we conclude that there was no abuse of discretion on the

part of the Regional Director in sustaining the challenges to the

ballots of employees Joe Wright and Steve Groves in the repre-

sentation election. NLRB v. Caravelle Wood Products, Inc., 466

F. 2d 675 (7th Cir. 1972). Accordingly, the Board properly

held that the Company (Respondent) violated Section 8 (a) (S)

of the National Labor Relations Act by refusing to bargain with

the duly certified representative of its employees.

The Board’s complaint under section 10 (e) of the Act was not

time barred by section 10 (b) of the Act. NLRB v. Basic Wire

Products, Inc., 516 F. 2d 261 (6th Cir. 1975); NLRB v. Louisi-

ana Bunkers, Inc., 409 F. 2d 1295 (Sth Cir. 1969).

IT IS ORDERED that the Board’s order shall be enforced.”

JURISDICTION

The jurisdiction of this Court is involved under 28 U.S.C.

1254 (1) and the Fifth Amendment to the Constitution of the

United States.

QUESTIONS PRESENTED

1. The Court Below Erroneously and Unconstitutionally

Refused to Set Aside an Opinion and Order of the National

Labor Relations Board which found that relatives of those

involved in the operation and ownership of a closely held

corporation could not vote in a representation election held at

Petitioner’s place of business.

II. The Court below Erroneously and Unconstitutionally

Refused to Set Aside an Opinion and Order of the National

Labor Relations Board which found that the Unfair Labor

Practice Charges filed in this case were not time barred by the

applicable period of limitations.

CONSTITUTIONAL PROVISIONS AND

STATUTE INVOLVED

The pertinent constitutional provision involved in this case

is as follows:

“. . . nor shall any person . . . be deprived of

life, liberty or property, without due process of

law;...” Fifth Amendment to the Constitution

of the United States.

From Wright’s point of view this case involves a construc-

tion of Section 2 (3) of the National Labor Relations Act,

which provides in relevant part that:

“The term ‘employee’ shall include any employ-

ee, . . . unless this subchapter explicitly states

otherwise . . . but shall not include any individual

employed by his parent or spouse...” 29

U.S.C. 152 (3).

And in tur, a construction of the relationship between Section

2 (3) and 9 (b) of the Act which provides in relevant part that:

“The Board shail decide in each case whether,

in order to insure to employees the fullest

freedom in exercising the rights guaranteed by

this subchapter, the union appropriate for the

purpose of collective bargaining shall be the

employer unit, craft unit, plant unit, or sub-

division thereof. . . .” 29 U.S.C. 159 (b).

The gloss placed on the statute by the Board and approved by

the Court below raised a substantial federal and constitutional

issue as to how far the Board can go in reading the statute

which controls its actions.

Similarly, from Wright’s point of view this case involves a

construction of Section 10 (b) of the National Labor Relations

Act, which provides in relevant part that:

“.. . no complaint shall issue based upon any

unfair practice occurring more than six months

prior to the filing of the charge with the Board

...” 29 U.S.C. 160 (b).

Once again the gloss placed on the statute by the Board and

approved by the Court below raises a substantial federal and

constitutional issue as to how far the Board can go in reading

the statute which controls its actions.

STATEMENT

Wright operates an automobile dealership and service

operation in Evansville, Indiana and is engaged in the sale, repair

and distribution of automobiles and related products. (Appen-

dix 4 (b) hereafter “A.” and page numbers). A Board con-

ducted election was held at Wright on June 5, 1973 and the

results were 14 votes cast for a labor union and 12 votes against

with 3 ballots challenged. (A. 31-33; 57-58 4 (a) - (b), 5).

Because the challenged ballots affected the election results, at

the Regional level the Board conducted an investigation of the

challenges, all of which were made by the union involved. On

August 9, 1973 the Board’s Regional Office held that the

challenged ballots of two employees, Wright and Groves, should

be sustained because their interest were more closely allied

with their parents, who were principal stockholders and officers

of Wright, than with their fellow employees. (A. 31-33; 9-12;

18-29). The Regional Director further recommended that the

remaining challenge not be resolved since it was no longer

determinative with, however, the reservation that if his decision

were overruled a hearing be held on this challenged ballot and,

as well, any other ballots subject to a hearing. (A. 9-12).

On August 17, 1973, Wright filed exceptions to the Decision

of the Regional Director and on October 19, 1973, the Board

denied these exceptions and certified the union as the represen-

tative of the employees of Wright. (A. 31-33). Thereafter,

Wright filed a motion for reconsideration of the representation

proceeding and, also, arguing that a hearing be held on the

three challenged ballots. On November 6, 1973, the Board

denied this motion. (A. 34-35; 58; 41).

After the Board’s issuance of a certification of representative

on October 19, 1973 the union made a demand for recognition

on January 30, 1974 and this demand was refused on February

1, 1974. Thereafter, or July 8, 1974, the union made another

demand for recognition and this second demand was refused on

July 17, 1974. Finally, on October 2, 1974, the union filed

charges against Wright based upon a refusal to bargain within

the meaning of Section 8 (a) (5) of the National Labor Re-

lations Act, 29 U.S.C. 158 (a) (5). (A. 45 (A) - (D); A. 56).

The Board issued a complaint upon the charges filed by the

union on October 10, 1974, and Wright filed its answer on or

about November 1, 1974, affirmatively alleging that all three

challenged ballots should have overruled and the votes counted

and that the unfair labor practices involved in the case were not

timely filed and barred by Section 10 (b) of the Act and that tu

hold otherwise would amount to a denial of due process within

the meaning of the Constitution of the United States. (A. 47-

48). Thereafter, the Board filed a motion for summary judg-

ment through its General Counsel and such motion was sus-

tained. (A. 52-54; 56).

REASONS FOR GRANTING THE WRIT

THE COURT BELOW ERRONEOUSLY AND UNCON-

STITUTIONALLY REFUSED TO SET ASIDE AN OPINION

AND ORDER OF THE NATIONAL LABOR RELATIONS

BOARD WHICH FOUND THAT RELATIVES OF THOSE

INVOLVED IN THE OPERATION AND OWNERSHIP OF

A CLOSELY HELD CORPORATION COULD NOT VOTE IN

A REPRESENTATION ELECTION HELD AT PETITIONER’S

PLACE OF BUSINESS.

It is the position of Wright that Section 2 (3) of the Act

means what it says: “The term ‘employee’ shall include any

employee . . unless this subchapter explicitly states otherwise

. . . but shall not include any individual . . . employed by his

parent or spouse. . .” 29 U.S.C. 152 (3). Thus, when the Court

below and the Board found that the two employees involved in

this case were “employees”, there wes no basis for forbidding

them the vote without an explicit statutory basis for the ex-

clusion. Similarly, the reliance of the Court below and the

Board in Section 9 (b) of the Act is misplaced because this part

of the Act means what it says: “The Board shall decide in each

case whether, in order to assure employees the fullest freedom

in exercising the rights guaranteed by this subchapter, the unit

appfopriate for the purposes of collective bargaining shall be

the employer unit, craft unit, plant unit, or subdivision thereof

...” 29 U.S.C. 159 (b). There is nothing in the statute about

so-called community of interest or who is related to whom,

only how a collective bargaining unit will be determined.

To repeat, it is the position of Wright that the above-men-

tioned statutory language is not at all ambiguous and simply

means what it says. That is, without fitting a specific exception

by explicit language, an employee is covered by the Act. Cer-

tainly, once this is decided, it would seem impossible to take

ole

the step of saying even though someone is an employee within

the meaning of Section 2 (3) under Sectior 9 (b) he can ba

excluded from a collective bargaining unit because he is in

fact not an employee, i. e., the same determination cannot be

made twice under the same statute. That is, 9 (b) means what

it says by stating that the need for placing employees under

Section 2 (3) in an appropriate bargaining unit furthers the

statutory purpose. In this case, both the Court below and the

Board, as a matter of law, have ignored the governing statute.

A recitation of the facts indicates this.

With reference to Steve Groves the record shows that he is

the son of Clarence Groves and Eleanor Groves. Clarence

Groves works at Wright as a Service Writer and has no managerial

duties at Wright. (A. 19) Eleanor Groves owns about 28%

of the stock of Wright and she is related to the other two

stockholders, her brother and sister. (A. 19) Mrs. Groves is not

engaged in any form of active management. (A. 19) In other

respects, Steve Groves works in a capacity similar to that of

other employees. (A. 18)

With reference to Joseph Wright the record shows that he is

the son of George Wright who owns 51% and a fraction of the

stock of Wright. (A. 19) Similarly, Joe Wright is related to the

other two stockholders, they are his aunts. (A. 19) In other

respects, Joe Wright works in a capacity similar to that of other

employees. (A. 29).

Although Wright has been unable to find in the Act any

reference to the term “special status”, it is also difficult in the

extreme to give this term any precise meaning. Under the

guidelines established by the Court below in NLRB v. Caravelle

Woods Products, Inc., 466 F. 2d 674 (CA-7 1972) at 679,

there is some indication of a factual approach to defining this

term. However, the Board and the Court below have really

made no determination in this case as to special status other

than the one, which Wright asserts shortcircuits the statute,

-8-

relating to kinship. And this absent any finding that the cor-

pora' structure in question is anything other than lawful.

What Wright, therefore, believes is at the heart of the legal

error on this issue is the simple fact that there has been an

attempt in this case to ignore factors other than family relation-

ship in deciding that the two employees in question, Wright and

Groves, lack a community of interest with other employees in

the appropriate bargaining unit absent any straight-forward

finding that they are not employees under Section 2 (3) of the

Act. This is particularly true when Section 9 (b) covers the

working relationship, not the family relationship. This legal

position as read by Wright would require the exclusion of

relatives of union officials of all sorts from voting in elections

if it is to be consistent as, apparently, the law requires. NLRB

v. Savair Manufacturing Company, 94 §. Ct. 495, 499-501

(1974).

The legal concept applied in this case se2ms to boil down to

this. Even though an employee may be performing work

under the same terms and conditions as other employees,

he cannot be allowed to vote in an NLRB election where

his kinship to anyone with a substantial ownership interest

can be shown. This is not what the Act contemplates or

authorizes.

The facts clearly show Steve Groves just doesn’t work

for his “parent or spouse”. If the statute be applied as it

reads the same is true of Joseph Wright, since his sole

employer is Wright Motors, Inc., not George A. Wright.

Section 9 (b), and there are hundreds of cases on point,

related to work performed and the conditions under

which similar work is performed, not who is related to

whom. In an often cited case in which the Board dis-

cusses the function of 9 (b) the following observations

are made:

“First and foremost is the principle the mutu-

ality of interest in wages, hours, and working

conditions is the prime determinant of whether

a given group of employees constitutes an

appropriate unit.” Continental Baking Comp-

any, 99 NLRB 774, 782 (1952) also see dis-

cussion in 1 LRX § 7, pp. 47-50.

Were the Board’s and Court below’s position taken to its logica

conclusion rather odd and unlawful bargaining units would b«

within the board’s administrative discretion. For exampk

under the “community of interest’ rubric professional em

ployees with a close community of interest with other em-

ployees could be included in the same bargaining unit with

other employees contrary to Section 9 (b) (1) of the Act, 29

U.S.C. 159 (b) (1); Leedom v. Kyne, 79 S. Ct. 180 (1958).

This is obviously why at one time the Board followed Wright’s

position and then reversed itself. See IJnternational Metal

Products Co., 107 NLRB 64, 67 (1953) and compare it with

Foam Rubber City No. of Florida, Inc., 167 NLRB 623 (1967).

Il.

THE COURT BELOW ERRONEOUSLY AND UNCON-

STITUTIONALLY REFUSED TO SET ASIDE AN OPINION

AND ORDER OF THE NATIONAL LABOR RELATIONS

BOARD WHICH FOUND THAT THE UNFAIR LABOR

PRACTICE CHARGES FILED IN THIS CASE WERE NOT

TIME BARRED BY THE APPLICABLE PERIOD OF LIMI-

TATIONS.

The sequence of events in this aspect of this case is as

follows:

Date and Yea: Event

October 19, 1973 Certification of Representative

(A. 33)

-10-

January 30, 1974 Demand for recognition

(A. 45 (A) )

February 1, 1974 Refusal of recognition

(A. 45 (B) )

July 8, 1974 Demand for recognition

(A. 45 (C) )

July 17, 1794 Refusal of recognition

(A. 45 (D) )

October 2, 1974 Charges of refusal to bargain

filed. (A. 42)

The above clearly shows that almost a year after the

issuance of a certification in this case, the Union filed charges

with the Board. In NLRB y. Basic Wire Products, Inc., 516

F. 2d 261 (CA-6 1975) another Court of Appeals held that

under somewhat similar facts the period of limitations had

not run. This decision is, apparently, based on the concept

of continuing demana, which means, in this case, that the

Union’s first demand to bargain in January tolled the period

of limitations until its second demand in July. (This is some-

what akin to saying that in civil litigation in the tort field a

series of letters within the period of limitations would allow

an injuried party to ignore the period.) Additionally, this

position seems to say the same offense relating to the same set

of facts goes on so long as one party writes letters. For

example, if one refuses to sign a contract in January a similar

retusal in July creates a new orfense. Compare NLRB vy. Basic

Wire Products, Inc., 516 F. 24 261 (CA-~6 1975) with NLRB y.

McCready and Sons, Inc., 482 F. 2d 872 (CA-61973) wherein

it was held such a second refusal to sign a contract did not

Create a new claim.

. Section 10 (b) of the Act, 29 U.S.C. 160 (b), pro-

vides in relevant part that:

-li-

“. . . no complaint shall issue based upon any

unfair practice occurring more than six months

prior to the filing of the charge with the Board.

There is nothing in the statute about the period being tolled by

writing a series of letters relating to the same conduct. Neither

is there anything about a certification year being an exception

to the imitation period. It is Wrights’ contention that the

following would apply to the facts in this case.

“It is doubtless true that S 10 (B) does not

prevent all use of evidence relating to events

transpiring more than six months before the

filing and service of an unfair labor practice

charge. However, in applying the rules of

evidence as to the admissibility of past events,

due regard for the purposes of S 10 (b) requires

that two different kinds of situations be dis-

tinguished. The first is one where occurences

within the six-month limitations period in and

of themselves may constitute, as a substantive

matter, unfair labor practices. There, earlier

events may be utilized to shed light on the

true character of matters occurring within the

limitations period; and for that purpose S 10

(b) ordinarily does not bar such evidentiary

use of anterior events.

The second situation is that where conduct

occurring within the limitations period can be

charged to be an unfair labor practice only

through reliance on an earlier unfair labor

practice. There the use of the earlier unfair

labor practice is not merely ‘evidentiary’,

since it does not simply lay bare a putative

current unfair labor practice. Rather, it serves

-12-

to cloak with illegality that which was other

wise lawful. And where a complaint based upon

that earlier event is time-barred, to permit that

event itself to be so used in effect results in

reviving a legally defunct unfair labor practice.”

Local Lodge 1424, Machinists v. NLRB, 80 S.

Ct. 822, 826 (1960).

It would seem to be a strange use of human events to say that

in this case that for the purpose of finding a violation of the Act

on the one hand the refusal to bargain on the part of Wright

occurred in July when in fact it occurred in February. Even the

language in Wright’s July refusal relates back to the date when,

if any, the unfair labor practice occurred, February 1, 1974.

(A. 45 (B) ) The policy in this case is clear—the Board and the

Court below want to rely on the February events but not

substantively, which would defeat the very purpose of having

a period of limitations. The event that triggered any obligation

to bargain has to have been the Board’s certification issued in

October--in the civil context this is the date of the accident-

making the circumstances in this case rather unusual in that

the union rested on its oars from Wright’s point of view for

almost a year, not just six months.

£%

CONCLUSION

For these reasons, a writ of certioran should issue to review

the judgment and opinion of the Court of Appeals for the

Seventh Circuit and Petitioner asks for all further and proper

relief.

Respectfully submitted,

JOSEPH A. YOCUM

305 Union Federal Building

Evansville, Ind. 47708

Attorney for Petitioner

KAHN, DEES, DONOVAN & KAHN

305 Union Federal Building

Evansville, Indiana 47708

Telephone: (812) 423-3183

Of Counsel

APPENDIX

3.27.73

4. 3.73

4. 9.73

4.12.73

4.27.73

6. 5.73

6.12.73

8. 9.73

8.20.73

9.19.73

10.21.73

ae eee. oe

. ° =

CHRONOLOGICAL LIST OF 17

RELEVANT DOCKET ENTRIES

In the Matter of: Wright Motors, Inc.

Board Case Nos. 25-CA-6576

25-RC-5320

Petition filed

Regional Director’s notice of representation

of hearing dated

Union’s request for postponement of hearing dated

Regional Director’s Order rescheduling hearing

dated

Parties Stipulation for a consent Election dated

Tally of Ballot of Election held, June 5, 1973.

Union’s objections to conduct Affecting Election.

Report on Objection to conduct affecting results

of Election challenged Ballot and recommen-

dations to the Board, and Order Consolidating

Cases dated

Employer’s Exceptions and Motion to Consoli-

date and Vacate received

Board’s Decision and Certification of Represen-

tative

Employer’s Exceptions and Motion to reconsider

received

11. 6.73

10. 2.74

10.10.74

10.17.74

10.31.74

11.19.74

11.29.74

1.23.75

2. 6.75

3.12.75

Board’s Order denying Motion dated

25-CA-6576

Charge filed in Case No. 25-CA-6576

Complaint and Notice of Hearing dated

Answer to Complaint dated

General Counsel’s Motion to Strike Portions of

Respondent’s Answer and Motion for Summary

Judgment dated

Order Transferring Proceedings to the Board and

Notice to Show Cause dated

Respondent’s Response to Notice to Show Cause

dated

The National Labor Relations Board Decision and

Order, dated

Respondent’s Motion and exception, dated

Board’s Order denying Respondent’s Motion and

Exceptions, dated

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

REGION TWENTY-FIVE

WRIGHT MOTORS, INC.

Employer

and Case No. 25-RC-5320

Case No. 25-CA-5626

LOCAL 215, INTERNATIONAL BROTHERHOOD

OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN

AND HELPERS OF AMERICA

Petitioner

REPORT ON OBJECTIONS TO CONDUCT AFFECTING

RESULTS OF ELECTION, CHALLENGED BALLOTS AND

RECOMMENDATIONS TO THE BOARD, AND ORDER

CONSOLIDATING CASES

Pursuant to a Petition filed on March 27, 1973 and a

Stipulation for Certification Upon Consent Election approved

by the undersigned, an election was conducted on June 5, 1973

among certain employees 1 of the above-named Employer to

determine whether they desire to be represented by the Peti-

tioner for the purposes of collective bargaining. The Tally of

Ballots served upon the parties at the conclusion of the election

shows the following results:

Approximate number of eligible voters 29

Void ballots None

1 The appropriate unit as set forth in item 12 of the Stipu-

lation is as follows: “All mechanics, body men, painters,

general laborers, partsmen and service writers employed by

the Employer at its Evansville, Indiana establishment; but

excluding all office clerical employees, dispatchers, all

professional employees, all guards and supervisors as defined

in the Act.”

“Appendix F”’

Votes cast for the Petitioner 14

Votes cast against the Petitioner 12

Valid votes counted 26

Challenged ballots 3

Valid votes counted plus challenged ballots 29

The challenged ballots are determinative of the results of the

election. On June 12, 1973 the Petitioner filed timely ob-

jections ? to conduct affecting the results of the election.

Pursuant to Section 102.69 of the Rules and Regulations of the

National Labor Relations Board, an investigation was con-

ducted under the direction and supervision of the undersigned

who, after considering the results thereof, reports thereon as

follows:

THE OBJECTIONS

The Petitioner’s objections allege, in relevant part:

Shortly before the polls were to be opened on election day,

the observer for the Employer contacted one or more

eligible voters and promised, on behalf of the Company,

that if the Union were voted out the Employer would

confer certain benefits on the employees.

It is the position of the Union that all three challenged

voters were not properly a part of the voting unit and were

sent in to vote solely for the purpose of undermining the

majority status of the Union and in order to delay the

ultimate certification of the Union.

2 Both parties were requested to furnish, and have furnished,

various evidence in support of their respective positions as

to the issues raised by the Challenged Ballots and the

Objections.

THE CHALLENGED BALLOTS

The Petitioner challenged the ballots of Steve Groves, Katie

Sargent, and Joe Wright. Groves was challenged because he is

the son of the Vice-President of Employer. Katie Sargent was

challenged as “not in the unit — cleaning lady,” and Joe Wright

was challenged because he is the son of the “owner” of Em-

ployer.

Groves and Wright

During the investigation of the Challenged ballots, evidence

was adduced to the effect that Joe Wright is the son of the

President of Wright Motors, Inc., George Wright, and that

George Wright owns between 51 and 52% of the stock in

Wright Motors. Steve Groves is the son of Clarence Groves and

Eleanor Groves. Eleanor Groves, the sister of George Wright,

owns nearly 28% of the stock in Wright Motors, Inc. Both

young men live with their parents. The remaining 20% of the

stock in Wright Motors, Inc. is owned by George Wright’s

sister, Abigail Whitehead. The only officers in Employer are

George Wright; Clarence Groves; and Horace Lett, the Secretary

and Treasurer. The investigation reveals that George Wright

directs and operates the Employer with the assistance of his

Sales Manager, Malcomb Cl: yton, who assumes active leadership

of the Company in Wright’s absence. Both Clarence Groves and

Horace Lett have the authority to countersign corporate checks;

however, the Employer alleges, and there is no evidence to the

contrary, that Groves is not effectively involved in the day-to-

day direction of the Company. To the contrary, the evidence

indicates that his daily function is as a service writer. George

Wright states in his affidavit that “I chose not to have Clarence

Groves vote since I did not want to create any dissension.”

Although Groves’ father, Clarence Groves, is not actively

engaged in the daily direction of the Employer, it is noted that

his mother owns some 28% of the Employer and his uncle owns

a controlling 52% of the Employer and an aunt, Abigail White-

head, owns the balance. Therefore, under the guidelines enun-

ciated by the Board in Foam Rubber City #2 of Florida, Inc.

d/b/a Scandia, 167 NLRB 623 and followed in Cerni Motor

Sales, Inc., 201 NLRB No. 133 and Parisoff Drive-In Market,

Inc., 201 NLRB No. 102 “children of principals of closely held

corporations, because of their relationship with a substantial

owner of this type of enterprise, have interests more closely

identified with management than with their fellow employees”

and therefore would be excluded under Section 9 (b) of the

Act. It becomes apparent that both Joe Wright and Steve

Groves, both of whom live at home with their parents, would

necessarily have interests in the Employer more closely identified

with their parents, the owners and principals of the company,

than with their co-workers.

Accordingly, for the reasons cited above, it is recommended

that the challenges to the ballots of Groves and Wright be sus-

tained. The remaining challenged ballot (Sargent) is no longer

determinative of the outcome of the election and will not,

therefore, be commented on here. Should it become necessary

to make a determination as to the eligibility of Sargent, it is

recommended the matter be resolved by a formal hearing

inasmuch as the evidence presented by the parties in support

of their positions raises questions of credibility which could

best be resolved in a hearing.

THE OBJECTIONS 3

The first portion of the objections alludes to an alleged pro-

mise of benefits by the Employer observer prior to the election.

The Union provides one witness to this alleged incident, witness

A, who states:

3 In the event recommendations | (a) and (b) are affirmed,

Petitioner’s objections become moot, and in such circum-

stances it is recommended that they not be passed on by the

Board.

That on June 5, 1973, at approximately 10:00

A.M., Mr. Jim LeMond came to my work area and

told me that Mr. George Wright made a statement,

in a meeting with the salesmen, that if the Union

was voted out, he would pay the weekly guarantee

that the employees wanted, would straighten out

the parts room problem and would get better-priced

repair orders and the repair orders written up faster.

There is no evidence that the cbdserver (LeMond) is or was an

agent of the Employer. LeMond denies the conversation and

denies ever hearing Wright make such a statement to anyone.

Wright denies any such statement at any time to anyone.

Assuming arguendo the credibility of witness A over the Em-

ployer observer, LeMond, there is still insufficient evidence of

agency to show that such a statement by LeMond can be

fairly attributed to the Employer and thus be objectionable.

The second portion of the objections alleges that the three

challenged voters were deliberately sent in by the Employer to

undermine the majority status of the Union and to delay

certification of the Union. ‘The fact that the Employer holds

a different view from that of the Union with regard to the

eligibility of the three persons in question is not, in and of

itself, objectionable even assuming he held this view so strongly

that he encouraged the three to vote in the election.

ADDITIONAL ALLEGED OBJECTIONABLE CONDUCT

During the course of the investigation of the listed object-

ions and the co-existing “C” case, 25-CA-5626, evidence of

additional allegedly objectionable conduct was adduced. As the

matters raised by the additional alleged objectionable conduct

brought to the undersigned’s attention during the course of the

investigation are alleged as Unfair Labor Practices in the com-

plaint in Case No. 25-CA-5626, more particularly those alle-

gations of paragraphs 5 (a) through (j) of said complaint occur-

ring between March 27 and June 5, 1973 inclusive, it appears

24 a

2. The undersigned having duly considered the matter

that the issues raised by said conduct give rise to substantial and deeming it necessary in order to effectuate the purposes

and material issues concerning the validity of the election con- of the Act and to avoid unnecessary costs or delay, IT IS

ducted herein. ORDERED:

It is recommended that the Petitioner’s specific objections That pursuant to Section 102.33 of the Rules and

be overruled in their entirety. Since the additional objection- Regulations, Series 8, as amended, of the National Labor

able conduct alluded to above is already the subject of an Un- Relations Board, that Cases Nos. 25-RC-5320 and 25-CA-

fair Labor Practices complaint, the instant case will be consoli- 5626 be, and they hereby are, consolidated for the purposes

dated with 25-CA-5626 for the purpose of a hearing, ruling, of hearing, ruling, and decision by the Administrative Law

and decision by an Administrative Law Judge. Judge and that thereafter Case No. 25-RC-5320 be trans-

ferred to and continued before the Board in Washington,

RECOMMENDATIONS AND ORDER D. C. and that the provisions of Sections 102.46 and 102.69

(e) of the above-mentioned Rules shall govern the filing of

For the reasons hereinabove set forth: exceptions. 5

l. It is recommended that: DATED AT Indianapolis, Indiana this 9th day of August

. 1973.

a) The challenges to the ballots of Groves and Wright

be sustained.

b) An appropriate revised tally of ballots and certifi- Wm. T. Little

cation of representative be issued. Regional Director

National Labor Relations Board

¢) The listed objections to the election be overruled. Region Twenty-five

ISTA Center, 150 West Market St.

d) In the event the Board does not follow or affirm Indianapolis, Indiana 46204

recommendations | (a) and (b), the matter be

remanded for a hearing on (A) the eligibility of

Sargent, Groves, and/or Wright as may be appropr- 5 Under the provisions of Section 102.69 of the Board’s Rules

iate and (B) the above-discribed additional alleged and Regulations, exceptions to this report may be filed with

objectionable conduct alleged in paragraphs 5 (a) the Board in Washington, D. C. Exceptions must be re-

through (j) of the Complaint in Case No. 25-CA- ceived by the Board in Washington by August 20, 1973.

5626. 4

4 Pending the Board’s decision with regard to the challenged

ballots, the 8 (a) (5) portion of 25-CA-5626 is being held in

abeyance.

UNITED STATES OF AMERICA 14

BEFORE THE NATIONAL LABOR RELATIONS BOARD

WASHINGTON, D. C.

WRIGHT MOTORS, INC.

Employer

Case No. 25-RC-5320

Case No. 25-CA-5626

and

LOCAL 215, INTERNATIONAL BROTHERHOOD

OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN

AND HELPERS OF AMERICA

Petitioner

EMPLOYER’S (1) EXCEPTIONS AND

(2) MOTION TO CONSOLIDATE AND

VACATE

The Employer now files its Exceptions to the Regional

Director’s Report on Objections, Challenged Ballots and Re-

commendations, and Motion as follows:

1. The Employer excepts to the Regional Director’s Re-

commendations and Order (as set out at pages 3 and 4 of his

Report) to the effect that the challenges to the ballots of

employees Steve Groves and Joe Wright be sustained, for the

following reasons. Section 2 (3) of the Act provides in relevant

art that:

seaaiaNs 15

“The term ‘employee’ shall include any em-

ployee, . . . unless this subchapter explicitly

states otherwise, . . . but shall not include

any individual employed as an agricultural

laborer, or in the domestic service of any

family or person at his home, or any indi-

vidual employed by his parent or spouse. . .”

When read in light of Exhibits A through D annexed hereto,

it seems incredible that the Regional Director could conclude,

as he does, (at page 2 of his Report) that Steve Groves is not an

employee within the meaning of the Act. The annexed affi-

davits show that Groves occupies no special position with the

company due to the fact that his father is related by marriage

to the principal stockholder of the Employer and that his

father through marriage has some stock ownership in Employer.

What the annexed affidavits show is the simple fact that Steve

Groves is not employed by his “parent or spouse.” The facts

show that as a rank and file employee of an Indiana corpo-

ration, Wright Motors, Inc., were he denied the right to vote in

an election, his rights under Section 7 of the Act would be

violated and in effect, both this Employer and Steve Groves

would be denied equal protection and due process of law.

In sum, the Board’s position on this issue is contrary to the

facts as shown by the annexed affidavits and is contrary to

law. See the observation of the Court in N.L.R.B. v. Caravelle

Wood Products, Inc., 466 F. 2d 675 (CA-7 1972) The same

reasoning applies to Joe Wright, and the facts in support of -

this position are found in Exhibit D annexed hereto, very

clearly showing that Wright performs duties that are exactly

the same as those of other bargaining unit employees and

therefore the challenge to his ballot should be denied. See

Printing Industry of Delaware, 131 NLRB 1100 (1961).

a. There are compelling policy reasons as to why the

challenges to the ballots of Joe Wright and Steve Groves should

be denied, since both young men perform bargaining unit work.

Section 7 of the Act and Section 2 (3) of the Act have a very

plain meaning, which is to the effect that to be excluded from

the Act’s coverage a person must be “employed by his parent

or spouse.” The facts in this case show that if the Regional

Director’s position is sustained through his reliance on Foam

Rubber City #2, 167 NLRB 623 (1967), both employees in

question would be denied their statutory rights, since they are

are not in fact employees who fit the exception contained in

Section 2 (3) of the Act. If Congress had intended to broaden

the exclusion contained in Section 2 (3) it could have done so

by applying the statute to closely held corporations, but it

chose not to do so. Unless the Board can by administrative

amendment graft new language into the Act itself, it would

seem beyond doubt that these challenges must be denied.

Similarly, the Regional Director’s Report contains language

indicating special status, where the facts as shown by the

exhibits annexed hereto show that none exist. Thus, even

under the current Board rules this would amount to a wooden

or per se application of the rules concerning the voting rights

of relatives of those who own stock in closely held corpora-

tions.

2. As the Regional Director indicates in his Report (at page

4) there is now pending a companion complaint case, 25-CA-

5626, which is now set for hearing on October 2, 1973. Also,

Employer would request that the Board take administrative

notice of the fact that there is also pending a Section 8 (a) (5)

charge which as yet has not been finally disposed of by the

Regional Office. Since there is obviously a relationship bet-

ween the status of the ballots challenged herein and the 8 (a)

(5) charge as well as the outcome of the representation election

held herein, because the rulings on the challenges are in fact

determinative, the vote being 14 for Petitioner and 12 for

Employer, unless the trial date herein is vacated until such

time as a final ruling is had on the charges alleging a violation of

Section 8 (a) (5) of the Act, Employer in this case as Respon-

dent in the companion complaint case may well be subjected to

not only a series of trials, but in addition prejudice of its rights

with reference to the Board’s policies concerning separation

of complaint and representation cases, as well as its right to due

process of law, in that in preparing a defense to the charges

"pon which a complaint has already been issued, it is in the

dark as to whether or not at some later date an 8 (a) (5) vio-

lation may become part of a complaint. This is particularly

so in this case, where the 8 (a) (5) violation would arise directly

out of a determination in the representation case. This matter

is further complicated by the relationship between the above

and Employer-Respondent’s rights of appeal as granted it

under Section 10 of the Act, which might well be pre- |

judiced were the complaint case now set for October 2,

1973 not vacated until such time as a final determination

is had in the instant representation case as to the outcome

of the election, as that in turn relates to the issuance or

non-issuance of a complaint relating to an alleged 8 (a) (5)

violation. As an alternative, however, the Board might

direct the Regional Director to post-haste make a decision

on the 8 (a) (5) issue, about which of course, it is Em-

ployer’s position that the charge is without merit.

WHEREFORE, Employer asks that the challenges to

the ballots of Steve Groves and Joe Wright be overruled,

and for all further and proper relief in the premises.

Respectfully submitted,

KAIiN, DEES, DONOVAN & KAHN

Joseph A. Yocum

Attorneys for Employer

KAHN, DEES, DONOVAN & KAHN

305 Union Federal Building

Evansville, Indiana 47708

Of Counsel

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

WRIGHT MOTORS, INC.

Employer

and Case 25-RC-5320

LOCAL 215 INTERNATIONAL BROTHERHOOD

OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN

AND HELPERS OF AMERICA

Petitioner

DECISION AND CERTIFICATION OF REPRESENTATIVE

Pursuant to a Petition and Stipulation for Certification up

Consent Election executed by the parties on April 4, 1973, an

election by secret ballot was conducted on June 5, 1973, among

certain employees of the Employer in the stipulated unit under

the direction and supervision of the Regional Director for

Region 25. At the conclusion of the election the parties were

furnished with a tally of ballots which showed that of approxi-

mately 29 eligible voters, 14 cast ballots for, and 12 cast ballots

against, the Petitioner, and 3 cast challenged ballots. The

challenges were sufficient in number to affect the results of the

election. Thereafter, the Petitioner filed timely objections to

conduct affecting the results of the election.

Pursuant to Section 102.69 of the National Labor Relations

Board Rules and Regulations, Series 8, as amended, after notice

to the parties, and opportunity to submit relevant evidence, the

Regional Director conducted an investigation of the issues

raised by the challenges and objections. On August 9, 1973, he

issued and duly. served upon the parties his Report on Chal-

lenged Ballots and Objections in which he recommended that

the challenges to the ballots cast by Joe Wright and Clarence

“Appendix H”

syjodeuripu]

9b:01 WV €Z 390 EL.

uosay YISZ

Pdtantei since OE Sethian * 5 eB te

Groves be sustained and that the issues raised by the challenge

to the ballot cast by Katie Sargent be resolved by a hearing, if

such ballot becomes determinative of the outcome of the

election.

Thereafter, the Employer filed exceptions to the Regional

Director’s recommendations regarding the challenged ballots,

a motion to vacate the date set for a hearing on an unfair labor

practice complaint and a motion to consolidate.

Pursuant to the provisions of Section 3 (b) of the National

Labor Relations Act, as amended, the National Labor Relations

Board has assigned the issues in connection with this case to

a three-member panel.

Upon the entire record in this case, the Board finds:

1. The Employer is engaged in commerce within the mean-

ing of the Act and it will effectuate the policies of the Act to

assert jurisdiction herein.

2. The Petitioner is a labor organization claiming to re-

present certain employees of the Employer.

3. A question affecting commerce exists concerning the

representation of the employees of the Employer within the

meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the

Act.

4. The parties stipulated, and we find, that the following

employees of the Employer constitute a unit appropriate

for purposes of collective bargaining within the meaning of

Section 9 (c) of the Act:

All mechanics, body men, painters, general laborers, parts-

men and service writers employed by the Employer at its

Evansville, Indiana establishment: but excluding all office

clerical employees, dispatchers, all professional employees,

CR, en Re ee

all guards, and supervisors as defined in the Act.

5. The Board has considered the Regional Director’s Re-

port, the Employer’s exceptions thereto and motions for

further action, and hereby adopts the Regional Director’s

findings and recommendations. !

Accordingly, as the tally shows that Local 215, Inter-

national Brotherhood of Teamsters, Chauffeurs, Warehousemen

and Helpers of America has obtained a majority of the valid

ballots cast, we shall certify it as the exclusive bargaining

representative of the employees in the appropriate unit.

CERTIFICATION OF REPRESENTATIVE

IT IS HEREBY CERTIFIED that a majority of the valid

ballots have been cast for Local 215, International Brotherhood

of Teamsters, Chauffeurs, Warehousemen and Helpers of

America and that, pursuant to Section 9 (a) of the National

Labor Relations Act, as amended, the said labor organization

1 In our opinion, the Employer’s exceptions and motions

raise no material issues which would warrant reversal or

modification of the Regional Director’s findings or recom-

mendations. The Regional Director recommended that

certain of the Petitioner’s listed Objections be overruled

and that certain alleged objectionable conduct which came

to his attention during the investigation of Case 25-CA-5626

be consolidated with the unfair labor practice case. Inas-

much, however as we are adopting his recommendation

that the challenges to ballots cast by certain employees

be sustained, the Petitioner has now received a majority

of the valid ballots cast and is entitled to certification,

thus making moot the objections as they pertain to the

election. Accordingly, we adopt the Regional Director’s

recommendation that the objections not be passed upon

by the Board, and find that it is unnecessary that this

case be consolidated with Case 25-CA-5626.

Pai setts ions

is the exclusive representative of all employees in the unit

found appropriate herein for the purposes of collective bar-

gaining in respect to rates of pay, wages, hours of employ-

ment, or other conditions of employment.

Dated, Washington, D. C., October 19, 1973.

Howard Jenkins, Jr., Member

Ralph E. Kennedy, Member

John A. Panello, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

WRIGHT MOTORS, INC..

Employer

and Case No. 25-RC-5320

LOCAL 215 INTERNATIONAL BROTHERHOOD

OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN

AND HELPERS OF AMERICA,

Petitioner

EXCEPTIONS AND MOTION TO RECONSIDER

The employer now moves the Board to reconsider its

Decision and Certification of Representatives in the above

case for the following reasons:

1. There is now pending before the National Labor Re-

lations Board, cases known on the records of the Board as

Case No. 25-CA-5626 and Case No. 25-CA-5742, in which

the employer herein is the respondent, and the issues involved

in said cases in turn involve issues in the instant proceeding,

Case No. 25-RC-5320, in that the bargaining unit status of

the employees in this case would, of necessity, have to be

litigated in the companion unfair labor practice cases.

2. Perhaps the Board has not examined the record in the

instant case as closely as it should with particular reference

to whether or not a hearing should be held on the bargaining

unit status of three of the employees involved in this case in-

Stead of just one, namely Katie Sargent. Although the Board

indicates that Joe Wright is in issue, it indicates also that a

Clarence Groves is in issue, and there is no Clarence Groves in

issue. Because of this, the employer feels that there may have

been some error in the analysis of the record, since the em-

ployee in issue is Steve Groves, and Clarence Groves is his

father, an employee not in issue in this proceeding. However.

as the record shows, both Clarence Groves and his son, Steve

Groves, work in the bargaining unit.

3. In light of both of the above specifications, unless the

employer is granted a hearing on all three challenged ballots

and this hearing is consolidated with the companion complaint

cases, Nos. 25-CA-5626, and 25-CA-5742, the employer will

have been denied due process of law, particularly with refer-

ence to the Board’s arbitrary rule with relation to the inclusion

or exclusion of relatives of management, which in the instant

case in effect denies Joe Wright and Steve Groves the rights

guaranteed them by Section 7 of the Act, and at the same

time discloses a subversion of the principle of parity of rights as

to unionization or to refrain from unionization, also established

under Section 7 of the Act.

Ultimately the Board’s Decision and Certification of Repre-

sentatives in this case is not supported by substantial evidence

on the record when considered as a whole, and also said Decision

and Certification is based on both incorrect principles of law

and/or improper application of the acceptable principles of law.

For purposes of this Exceptions and Motion to Reconsider,

employer would incorporate by reference all of its pleadings

filed to date in this case as well as the arguments based on the

facts and law contained therein, as further shown by Exhibit A

annexed hereto.

Respectfully submitted,

KAHN, DEES, DONOVAN & KAHN

By_

Attorney for Employer

Kahn, Dees, Donovan & Kahn

305 Union Federal Building

Evansville, Indiana 47708

October 23, 1973

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

WRIGHT MOTORS, INC.

Employer

and Case 25-RC-5320

LOCAL 215, INTERNATIONAL BROTHERHOOD

OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN

AND HELPERS OF AMERICA

Petitioner

ORDER DENYING MOTION

On October 19, 1973, the National Labor Relations Board

issued a Decision and Certification of Representative in the

above-entitled proceeding. In the Decision, the Board stated,

inter alia, that it was unnecessary that this case be consolidated

with Case 25-CA-5626.

Thereafter, on October 25, 1973, the Employer filed a

Motion for Reconsideration in which it, inter alia, contended

the Board’s Decision was in error, and requested that Case 25-

RC-5320 be consolidated with Cases 25-CA-3626 and 25-CA-

5742 for a hearing with respect to challenged ballots cast by

Joe Wright, Katie Sargent, and Steve Groves. |

The Board, having duly considered the matter,

1 In its Decision and Certification of Representative of Octo-

ber 19, 1973, the Board inadvertently referred to Steve

Groves as Clarence Groves. This inadvertence is hereby

corrected.

91-01 WV Z AON £2,

IT IS HEREBY ORDERED that the Employer's Motion

for Reconsideration be, and it hereby is, denied as lacking in

merit, and containing nothing not previously considered by the

Board. 2

Dated, Washington, D. C., November 6, 1973.

By direction of the Board:

Mario A. Laure, Jr.

Assistant Executive Secretary

UNITED STATES OF AMERICA

BEFORE THE NAT/ONAL LABOR RELATIONS BOARD

REGION TWENTY-FIVE

WRIGHT MOTORS, iNC..

and Case No. 25-CA-6576

LOCAL 215, INTERNATIONAL BROTHERHOOD

OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN

AND HELPERS OF AMERICA

COMPLAINT AND NOTICE OF HEARING

It having been charged by Local 215, International Brother-

hood of Teamsters, Chauffeurs, Warehousemen and Helpers of

America, herein called the Union, that Wright Motors, Inc..

herein called the Respondent, has engaged in, and is engaging in

certain unfair labor practices affecting commerce as set forth

and defined in the National Labor Relations Act, as amended,

2 In view of this action, Respondent’s Motion to Vacate Trial

Date, filed in Cases 25-CA-5626 and 25-CA-5742 is moot.

I i i

61 Stat. 136, 73 Stat. 519, herein called the Act, the General

Counsel of the National Labor Relations Board, herein called

the Board, on behalf of the Board, by the undersigned Acting

Regional Director for Region Twenty-five, pursuant to Section

10 (b) of the Act and the Board’s Rules and Regulations -

Series 8, Section 102.15, hereby issues this Complaint and

Notice of Hearing and alleges as follows:

1. The original charge was filed by the Union on October 2,

1974 and served on the Respondent by registered mail on or

about October 3, 1974.

2. (a) The Respondent is, and has been at all times material

herein, a corporation duly organized under, and existing by vir-

tue of, the laws of the State of Indiana.

(b) At all times material herein, the Respondent has

maintained its principal office and place of business at Evans-

ville, Indiana, herein called the facility, and is, and has been at

all times material herein, engaged at said facility and location in

the sale, service and distribution of new and used cars, acces-

sories, parts, and related products.

period, the Respondent, in the course and conduct of its

business operations, sold and distributed products, the gross

value of which exceeded $500,000.00. During the same re-

presentative period of time the Respondent shipped and trans-

ported products valued in excess of $50,000.00 from its place

of business in interstate commerce directly to States other

than the State of Indiana. During the same representative

period of time, the Respondent received goods valued in excess

of $50,000.00 transported to its place of business in inter-

state commerce directly from States other than the State of

Indiana.

(d) The Respondent is now, 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.

3. The Union is, and has been at all times material herein; a

labor organization within the meaning of Section 2 (5) of the

Act.

4. At all times material herein, the following-named person

occupied the position set opposite his name, and has been and

is now an agent of the Respondent at its facility, acting on its

behalf, and is a supervisor within the meaning of Section 2 (11)

of the Act:

George A. Wright President and Majority Stockholder

5. (a) All mechanics, body men, painters, general laborers,

partsmen and service writers employed by the Respondent at its

facility exclusive of all office clerical employees, dispatchers, all

professional employees, all guards and all supervisors as defined

in the Act constitute a unit appropriate for the purpose of col-

lective bargaining within the meaning of Section 9 (b) of the

Act.

(b) On or about June 5, 1973, a majority of the em-

ployees of the Respondent in the unit described above in

paragraph 5 (a), by a secret ballot election conducted under the

supervision of the Regional Director for Region Twenty-five of

the National Labor Relations Board, designated and selected

the Union as their representative for the purposes of collective

bargaining with the Respondent, and on or about October 19,

1973, the National Labor Relations Board certified the Union

as the exclusive collective bargaining representative of the

employees in said unit.

to date, the Union has been the representative for the purposes

of collective bargaining of the employees in the unit described

above in paragraph 5 (a), and, by virtue of Section 9 (a) of the

Act, has been, and is now, the exclusive representative of all

the employees in said unit for the purposes of collective bar-

gaining with respect to rates of pay, wages, hours of employ-

ment, and other terms and conditions of employment.

(d) Commencing on or about April 2, 1974, and

continuing to date, and more particularly on July 8, 1974, the

Union has requested, and is requesting, the Respondent to

bargain collectively with respect to rates of pay, wages, hours

of employment, and other terms and conditions of employ-

ment as the exclusive collective bargaining representative of

all the employees of the Respondent in the unit described

above in paragraph 5 (a).

(e) Commencing on or about April 2, 1974, and con-

tinuing to date, and more particularly on or about July 17,

1974, the Respondent did refuse to recognize and/or bargain

with the Union notwithstanding that the Union was at the

time the duly designated exclusive collective-bargaining repre-

sentative of the employees, as described above in paragraph

5 (a).

(f) On January 30, 1974, the Union mailed to the

Respondent a letter requesting to bargain, to which the Res-

pondent answered by letter on February 1, 1974. On July

8, 1974, the Union, by letter, again requested the Respondent

to bargain, and to which the Respondent answered by letter

on July 17, 1974. These letters, marked respectively Appen-

dixes A, B, C and D are attached hereto and made a part hereof.

6. By the Acts described above in paragraph 5, and by each

of said acts, the Respondent did refuse to bargain collectively,

and is refusing to bargain collectively, with the representatives

of its employees, and thereby did engage in, and is engaging in,

unfair labor practices affecting commerce within the meaning

of Section 8 (a) (5) and Sections 2 (6) and (7) of the Act.

7. By the acts described above in paragraphs 5 and 6, and

by each of said acts, the Respondent did interfere with, restrain,

tne erie Be. ~

and coerce, and is interfering with, restraining, and coercing its

employees in the exercise of the rights guaranteed in Section 7

of the Act, and thereby did engage in, and is engaging in, unfair

labor practices affecting commerce within the meaning of Sec-

tion 8 (a) (1) and Section 2 (6) and (7) of the Act.

8. The acts of the Respondent described in paragraphs 5,

6 and 7 above, occurring in connection with the operations of

the Respondent described in paragraph 2 above, have a close,

intimate, and substantial relation to trade, traffic, and com-

merce among the several States and tend to lead to labor

disputes burdening and obstructing commerce and the free

flow of commerce.

9. The acts of the Respondent described above constitute

unfair labor practices affecting commerce within the meaning of

Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the Act.

PLEASE TAKE NOTICE that on the 11th day of Novem-

ber, 1974, at 10:00 a.m. (CST), at Room 301, United States

District Courtroom, New Federal Building, 101 N. W. 7th

Street, Evansville, Indiana, a hearing will be conducted before

a duly designated Administrative Law Judge of the National

Labor Relations Board on the allegations set forth in the above

Complaint, at which time and place you will have the right to

appear in person, or otherwise, and give testimony. Form

NLRB 4668, Statement of Standard Procedure in Formal

Hearings Held Before the National Labor Relations Board in

Unfair Labor Practice Cases, is attached.

You are further notified that, pursuant to Sections 102.20

and 102.21 of the Board’s Rules and Regulations, the Respon-

dent shall file with the undersigned Acting Regional Director,

acting in this matter as agent of the National Labor Relations

Board, an original and four (4) copies of an answer to said

Complaint within ten (10) days from the service thereof and

that unless it does so, all of the allegations in the Complaint

shall be deemed to be admitted to be true and may be so found

42 | 43

Please let us know what date during these two weeks we can

by the Board. Immediately upon the filing of its answer, the

meet with you.

Respondent shall serve a copy thereof on each of the other

parties.

Very truly yours,

DATED AT Indianapolis, Indiana, this 10th day of Octo-

ber, 1974.

C. K. Arden, President

and Business Manager

George M. Dick CKA/me

Acting Regional Director |

National Labor Relations Board ce: Mr. Joe Kluemper, Jr.

Region Twenty-five Local Union #215

Sixth Floor, ISTA Center

150 West Market Street CERTIFIED MAIL

Indianapolis, Indiana 46204 RETURN RECEIPT REQUESTED

“Appendix A”

45(A) January 30, 1974 sh

aoz = _SENDER: Be sure to follow instructions on other side

5 bog a Please Furnish Service(s) Indicated By Checked Block(s) !

Wright Motors, Inc. r oe (Additional charges required for these services)

109 Southeast Third Street > a 8

Evansville, Indiana 47708 © : eo Show to whom, date and address Cc] Deliver ONLY

me ____—_where delivered _ eet address

ATTENTION: Mr. George A. Wright =

President be RECEIPT

Dear Mr. Wright: S Registered No. Signature or Name of Addressee _ |

(Must always be filled in)

According to the National Labor Relations Roard certification, !

we would like to meet with you and negotiate a collective ij Ee

bargaining agreement. 1 899441 Signature of Addressee’s Agent, If Any

| Insured No.

We will be available for such a meeting during the first week of @ tia rsee 2a

February, or the second week of February, 1974. | L Date Delivered Show Where Delivered (Only if requested, |

a —-

44 5

45(B) WRIGHT MOTORS, INC. 45(C) July 8, 1974

109 S. E. Third Street

EVANSVILLE, INDIANA 47708 :

Phone 812 . 422-3214

Mr. George A. Wright, President

Wright Motors, Inc.

4500 Division Street

Evansville, Indiana 47715

Certified #830035

aa INn

stjodeuerpuy

uOIsay YISZ

February 1, 1974 Dear Mr. Wright:

Again, we are writing to you and urging that you meet with us

Mr. C. K. Arden, President so that we can negotiate a collective bargaining agreement.

and Business Manager ~

Chauffeurs, Teamsters, and Helpers So Please let us know what date you can meet and the time and

Local Union 215 - place.

825 Walnut Street =-

Evansville, Indiana 47713 - Very truly yours,

Dear Mr. Arden: =

, ry

This will acknowledge receipt of your letter dated January C. K. Arden, President 5 c -

30, 1974. and Business Manager ae ol

3a2

:, me)

Because of the fact that we believe that your Union does CKA:ej val

not lawfully represent our employees because of erroneous

rulings by the National Labor Relations Board in a represen ta- Registered mail

tion case, we cannot meet with you for any purpose. Return receipt requested

We have decided to test the validity of the certification cc: Joe Kluemper, Jr.

issued you in the representation case. Local #215

Very truly yours,

80:7 Wd 7 0 BL.

George A. Wright, President

GAW/t “Appendix B”

“Appendix C”

SENDER: Be su i

Please Furnish Service(s) Indicated By Checked Block(s)

(Additional charges required for these services) {

Show to whom, date and address C] Deliver ONLY

_ Where delivered ae to addressee _

7 RECEIPT |

Received the numbered article described below __ :

~~" Registered No. Signature or Name of Addressee

51674 (Must always be filled in)

Delivered No. |

GQ) Signature of Addressee’s Agent, If Any

Insured No.

pan Bit a a nt

Date Delivered Show Where Delivered (Only if requested, -

___ July 9 _____include Zip Code. ;

Wright Motors, Inc.

45(D) 4500 Division Street

Evansville, Indiana 47715

Phone 812. 479-313]

July 17, 1974

Mr. C. K. Arden, President

and Business Manager

Chauffeurs, Teamsters, and Helpers

Local Union 215

825 Walnut Street

Evansville, Indiana 47713

Dear Mr. Arden:

In reply to your letter of July 8, 1974, please refer to our

letter of February 1, 1974.

Very truly yours,

WRIGHT MOTORS, INC.

George A. Wright

President

GAW/jm

Registered mail

Return receipt requested

“Appendix D”

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

REGION TWENTY-FIVE

Received Oct 21 1974

WRIGHT MOTORS, INC. Div. of Judges

NLRB Wash., D. C.

and Case No. 25-CA-6576

LOCAL 215, INTERNATIONAL BROTHERHOOD

OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN

AND HELPERS OF AMERICA RECEIVED

ANSWER TO COMPLAINT 74 Oct 17 AM 10:36

Respondent hereby files its answer to the complaint herein

as follows: '

1. Respondent admits the allegations of rhetorical para-

graph 1.

2. Respondent admits the allegations of rhetorical para-

graph 2. (a), (b), (c) and (d).

3. Respondent admits the allegations of rhetorical para-

graph 3.

4. Respondent admits the allegations of rhetorical para-

graph 4.

5. (a) Respondent admits the allegations of rhetorical

paragraph 5 (a).

5. (b) Respondent would admit that on or about June 5,

1973 there was an election held at Respondent’s dealership in

Evansville, Indiana, and Respondent would also admit the

factual allegations contained in paragraph 5. (b), but would

deny any legal intendment that a lawful majority of its em-

ployees designated Charging Party as a representative for the

purpose of collective bargaining, as shown by Exhibits A

through C, attached hereto and submitted to the Board as the

basis for Respondent’s position on certain challenged ballots

in a companion representation case, and Respondent is con-

tending herein that said position should have been sustained

based on the exhibits attached hereto, or in the alternative that

a hearing should have been held on said position.

5. (c) Respondent denies the allegations of rhetorical

paragraph 5. (c).

5. (d) Respondent would admit the factual allegations

contained herein as to the occurrence of said event, but would

deny that Charging Party’s commencement of request for

recognition was on or about April 2, 1974, and would deny the

legal conclusion that said request is continuing to date.

5. (e) Respondent would admit the factual allegations

contained in this paragraph, but would deny that Respondent’s

refusal to bargain commenced on or about April 2, 1974, and

would also deny the legal conclusion that said refusal is con-

tinuing to date.

5. (f) Respondent would admit the factual allegations

contained in paragraph 5. (f), and would, in light of these

factual allegations, move the Board for summary judgment in

this matter, in that as the face of the complaint shows, the

charge herein was served by registered mail on Respondent on

or about October 3, 1974, and Respondent’s refusal to bargain

was dated February 1, 1974, and therefore more than six (6)

months have elapsed between Respondent’s refusal to bargain

and Charging Party’s filing of the charge herein, and thus the

10 (b) period has run. In addition, Respondent would also

affirmatively plead that this entire matter is controlled by

Section 10 (b) of the Act, which states in relevant part that

“no complaint shall issue based upon any unfair labor practice

occurring more than six months prior to the filing of the

charge.” Further affirmatively pleading, Respondent would

state that any Board rulings in any form, contravening the six

month statutory requirement contained in Section 10 (b)

of the Act were invalidly adopted and would in any event be

contrary to law and the plain meaning of the statute involved,

and application of any rule other than the six month period to

Respondent under the plain meaning of Section 10 (b) of the

Act, would amount to a denial of due process and equal protec-

tion of the laws, as provided in the Constitution of the United

States, and would contravene the policy of Congress in enacting

Section 10 (b) of the Act, which was designed to promote

industrial harmony and prevent labor unrest.

6. Respondent denies the allegations of rhetorical para-

graph 6.

7. Respondent denies the allegations of rhetorical para-

graph 7.

8. Respondent denies the allegations of rhetorical para-

graph 8.

9. Respondent denies the allegations of rhetorical para-

graph 9.

WHEREFORE, Respondent asks that the complaint filed

herein be dismissed for the reasons stated above.

Respectfully submitted,

KAHN, DEES, DONOVAN & KAHN

Joseph A. Yocum

Attorneys for Respondent

KAHN, DEES, DONOVAN & KAHN

305 Union Federal Building

Evansville, Indiana 47708

Of Counsel

JKP

216 NLRB No. 50 D--9560

Evansville, Ind.

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

WRIGHT MOTORS, INC. ile in

| Formal File R

and Case TSCAO376

LOCAL 215, INTERNATIONAL BROTHERHOOD

OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN

AND HELPERS OF AMERICA

DECISION AND ORDER

Upon a charge filed on October 2, 1974, by Local 215,

International Brotherhood of Teamsters, Chauffeurs, Ware-

housemen and Helpers of America, herein called the Union, and

duly served on Wright Motors, Inc., herein called the Respon-

dent, the General Counsel of the National Labor Relations

Board, by the Regional Director for Region 25, issued a com-

plaint on October 10, 1974, 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, 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 19, 1973, following a

Board election in Case 25-RC-5320, the Union was duly certi-

fied as the exclusive collective-bargaining representative of

Respondent’s employees in the unit found appropriate; !

and that, commencing on or about July 17, 1974, and at all times

thereafter, Respondent has refused, and continues to date to

refuse, to bargain collectively with the Union as the exclusive

bargaining representative, although the Union has requested

and is requesting it to do so. On October 17, 1974, Respon-

dent filed its answer to the complaint admitting in part, and

1 Official notice is taken of the record in the representation

proceeding, Case 25-RC-5320, as the term “record” is

defined in Secs. 102.68 and 102.69 (f) of the Board’s Rules

and Regulations, Series 8, as amended. See LTV Electro-

systems, Inc., 166 NLRB 938 (1967), enfd. 388 F. 2d 683

(C.A. 4, 1968); Golden Age Beverage Co., 167 NLRB 151

(1967), enfd. 415 F. 2d 26 (C.A. 5, 1969); Intertype Co.

v. Penello, 269 F. Supp. 573 (D.C. Va., 1957); Follett

Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A.

7, 1968); Sec. 9 (d) of the NLRA.

216 NLRB No. 50

D-9560

denying in part, the allegations in the complaint.

On November 1, 1974, counsel for the General Counsel

filed directly with the Board a Motion for Summary Judgment

and to strike portions of the Respondent’s answer to the

complaint. Subsequently, on November 19, 1974, the Board

issued an order transferring the proceeding to the Board and a

Notice To Show Cause why the General Counsel’s Motion for

Summary Judgment should not be granted. Respondent there-

after filed a response to Notice To Show Cause.

Pursuant to the provisions of Section 3 (b) of the National

Labor Relations Act, as amended, the National Labor Relations

Board has delegated its authority 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 answer to the complaint and response to the Notice

To Show Cause, Respondent opposes the instant motion on

two grounds. First it argues that the certification issued the

Union in the underlying representation proceeding is invalid

because challenges to two ballots therein were erroneously

sustained, or that a hearing is required thereon. Second, Res-

pendent argues that this proceeding is barred by Section 10 (b)

of the Aet because its alleged refusal to bargain occurred more

than 6 months prior to the filing of the charge and moves for

Summary Judgment and dismissal of the complaint on this

basis. The General Counsel in support of his motion, argues

that the issue concerning the challenged ballots was litigated in

the representation proceeding and thus may not be relitigated

herein, and that this action is not barred by Section 10 (b)

because the Union’s request to bargain was within 6 months of

the filing of the charge. On essentially the same grounds, the

General Counsel also moves to strike those portions of Res-

D-9560

pondent’s answer which put the above-mentioned matters in

issue.

With regard to Respondent’s contention that the challenges

to two ballots should have been overruled, we have reviewed the

record in the representation proceeding, Case 25-RC-5320, to

the extent necessary to determine if this issue was litigated

therein, as submitted by the General Counsel. It appears that

the election conducted on June 5, 1973, pursuant to a (Stipu-

lation for Certification Upon Consent Election resulted in a 14

to 12 vote in favor of the Union, with 3 challenged ballots.)

After an investigation, the Regional Director issued a report,

inter alia, on the challenges, recommending that the challenges

of two ballots be sustained as the ballots were cast by employees

who were close relatives of owners and managers of the Res-

pondent, and the remaining challenged ballot be left unresolved

as it was no longer determinative of the election results. Res-

pondent filed exceptions to this report, with affidavits attached,

together with various motions, basically assigning error to the

Regional Director’s findings and recommendations. On October

19, 1973, the Board issued a Decision and Certification of

Representative, in which it noted that Respondent’s exceptions

raised no material issues warranting reversal or modification of

the Regional Director’s findings and recommendations and

adopted the same, and certified the Union. Thereafter, Res-

pondent filed further exceptions and a motion to reconsider the

Board’s ruling, asserting that the representation proceeding

should be consolidated with pending unfair labor practice

proceedings for hearing, and noting that the Board had erred

in its designation of one of the employees whose ballot had

been challenged. On November 6, 1973, the Board denied

Respondent’s motion as it did not contain anything not pre-

viously considered by the Board, ard corrected the inadvertent

error in its previous decision.

It thus appears that the General Counsel’s position is sound,

as the issues concerning the challenged ballots, including the

hearing thereon, were raised and considered in the underlying

34 D-9560

representation proceeding.

It is well settled that in the absence of newly discovered or

previously unavailable evidence or special circumstances a

respondent in a proceeding alleging 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 the Respondent in this proceeding were

or could have been litigated in the prior representation pro-

ceeding, and the Respondent does not offer to adduce at a

hearing any newly discovered or previously unavailable evi-

dence, nor does it allege that any special circumstances exist

herein which would require the Board to re-examine the decision

made in the representation proceeding. We therefore find that

the Respondent has not raised any issue which is properly -

litigable in this unfair labor practice proceeding.

With regard to Respondent’s contention that this proceed-

ing is barred by Section 10 (b), we note that the complaint

alleges that the Union requested bargaining with Respondent on

January 30, April 2, and July 8, 1974, and that Respondent

refused to bargain on February 1, April 2, and July 17, 1974,

respectively. In its answer to the complaint, Respondent

denies the April 2, 1974, request and refusal, but does not

dispute the July request and refusal which are also supported by

uncontroverted letters of the Union’s request and Respondent’s

refusal bearing the July dates attached to the complaint as

exhibits. Inasmuch as the charge was filed on October 2, 1974,

some 3 months after the Union’s request and Respondent’s

refusal to bargain, and as the duty to bargain upon request

is a continuing one, 3 we fine no merit in Respondent’s Con-

2 See Pittsburgh Plate Glass Co. v. NLRB. 313 US. 146,

162 (1941); Rules and Regulations of the Board, Secs.

102.67 (f) and 102.69 (c).

3 Louisiana Bunkers, Inc., 163 NLRB 656, 659 (1967).

D-9560

tention. Accordingly, Respondent’s Motion for Summary

Judgment and for dismissal of the complaint are hereby denied.

In view of the foregoing determinations, we shall grant the

General Counsel’s Motion for Summary Judgment and motion

to strike those portions of Respondent’s answer raising the

issues resolved herein.

On the basis of the entire record, the Board make the fol-

lowing:

Findings of Fact

I. The Business of the Respondent

Respondent is an Indiana corporation with its principal

office and place of business located in Evansville, Indiana,

where it is engaged in the sale, service, and distribution of new

and used cars, accessories, parts, and related products. During

the past 12 months, a representative period, Respondent,

in the course and conduct of its business operations, sold

and distributed products, the gross value of which exceeded

$500,000. During the same period, Respondent shipped and

transported products valued in excess of $50,000 from its

place of business in interstate commerce directly to States other

than the State of Indiana. During the same period, Respondent

received goods valued in excess of $50,000 transported to

its place of business in interstate commerce directly from States

other than the State of Indiana.

We find, on the basis of the foregoing, that Respondent 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.

D-9560

II. The Labor Organization Involved

Local 215, International Brotherhood of Teamsters, Chauf-

feurs, Warehousemen and Helpers of America, is a labor organi-

zation within the meaning of Section 2 (5) of the Act.

III. The Unfair Labor Practices

A. The Representation Proceeding

1. The unit

The following employees of the Respondent constitute a

unit appropriate for collective-bargaining purposes within the

meaning of Section 9 (b) of the Act:

All mechanics, body men, painters, general

laborers, partsmen and service writers employed

by the Employer at its Evansville, Indiana esta-

blishment: but excluding all office clerical

employees, dispatchers, all professional em-

ployees, all guards, and supervisors as defined in

the Act.

2. The certification

On June 5, 1973, a majority of the employees of Respon-

dent in said unit, in a secret ballot election conducted under the

supervision of the Regional Director for Region 25 designated

the Union as their representative for the purpose of collective

bargaining with the Respondent. The Union was certified as

the collective-bargaining representative of the employees in

said unit on October 19, 1973, and the Union continues to be

such exclusive representative within the meaning of Section 9

(a) of the Act.

D-9560

B. The Request To Bargain and

Respondent’s Refusal .

Commencing on or about July 8, 1974, and at all times

thereafter, the Union has requested the Respondent to bargain

collectively with it as the exclusive collective-bargaining repre-

sentative of all the employees in the above-described unit.

Commencing on or about July 17, 1974, and continuing at all

times thereafter to date, the Respondent has refused, and

continues to refuse, to recognize and bargain with the Union

as the exclusive representative for collective bargaining of all

employees in said unit.

Accordingly, we find that the Respondent has, since July

17, 1974, and at all times thereafter, refused to bargain col-

lectively with the Union as the exclusive representative of the

employees in the appropriate unit, and that, by such refusal,

Respondent 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 operations described in section

I, above, have a close, intimate, and substantial relationship to

trade, traffic, and commerce among the several States and tend

to lead to labor disputes burdening and obstructing commerce

and the free flow of commerce.

V. The Remedy

Having found that Respondent has engaged in and is engag-

ing in unfair labor practices within the meaning of Section 8 (a)

(S) 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

D-9560

appropriate unit, and, 1f an understanding is reached, embody

such understanding in a signed agreement.

In order to insure that the employees in the appropriate

unit will be accorded the services of their selected bargaining

agent for the period provided by law, we shall construe the

initial period of certification as beginning on the date Res-

pondent commences to bargain in good faith with the Union

as the recognized bargaining representative in the appropriate

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 (C.A. 5, 1964), cert.

denied 379 U.S. 817 (1964); Burnett Construction Company,

149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10,

1965).

The Board, upon the basis of the foregoing facts and the

entire record, makes the following:

Conclusions of Law

1. Wright Motors, Inc., is an employer engaged in com-

merce within the meaning of Section 2 (6) and (7) of the Act.

2. Local 215, 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 mechanics, body men, painters, general laborers,

partsmen and service writers employed by the Employer at its

Evansville, Indiana establishment: but excluding all office

clerical employees, dispatchers, all professional employees, all

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 19, 1973, the above-named labor organi-

zation has been and now is the certified and exclusive repre-

D-9560

sentative of all employees in the aforesaid appropriate unit for

the purpose of collective bargaining within the meaning of

Section 9 (a) of the Act.

5. By refusing on or about July 17, 1974, and at all times

thereafter, to bargain collectively with the above-named labor

organization as the exclusive bargaining representative of all

the employees of Respondent in the appropriate unit, Res-

pondent has engaged in and is engaging in unfair labor practices

within the meaning of Section 8 (a) (5) of the Act.

6. By the aforesaid refusal to bargain, Respondent has

interfered with, restrained, and coerced, and is interfering

with, restraining, and coercing, employees in the exercise of

the rights guaranteed to them in Section 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 Relations Board hereby

orders that Respondent, Wright Motors, Inc., Evansville, Indiana,

its officers, 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 Local 215, International Brotherhood of Teamsters,

Chauffeurs, Warehousemen and Helpers of America, is the

exclusive bargaining representative of its employees in the fol-

lowing appropriate unit:

All mechanics, body men, painters, general

laborers, partsmen and service writers employed

by the Employer at its Evansville, Indiana esta-

D-9560

blishment: but excluding all office clerical

employees, dispatchers, all professional em-

ployees, all guards, and supervisors as defined

in the Act.

(b) In any like or related manner interfering with, restrain-

ing. or coercing employees in the exercise of the rights guaran-

teed 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 understanding

in a signed agreement.

(b) Post at its Evansville, Indiana, facility copies of the

attached notice marked “Appendix.” 4 Copies of said notice,

on forms provided by the Regional Director for Region 25,

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 em-

ployees are customarily posted. Reasonable steps shall be

taken by Respondent to insure that said notices are not altered,

defaced, or covered by any other material.

4 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

PURSUANT TO A JUDGMENT OF THE UNITED

STATES COURT OF APPEALS ENFORCING AN ORDER

OF THE NATIONAL LABOR RELATIONS BOARD.”

D-9560

within 20 days from the date of this Order, what steps have

been taken to comply herewith.

Dated, Washington, D.C. Jan. 23 1975

Howard Jenkins, Jr., Member

Ralph E. Kennedy, Member

John A. Penello, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

WRIGHT MOTORS, INC.

and Case No. 25-CA-6576

LOCAL 215, INTERNATIONAL BROTHERHOOD

OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN

AND HELPERS OF AMERICA

MOTIO.’ AND EXCEPTION

Respondent files its exception to the Board’s Decision and

Order in the above matter, and a motion in the alternative to

clarify, as follows:

1. Respondent respectfully excepts to the Board’s con-

clusion that the motion for summary judgment filed by General

Counsel should be sustained as a matter of law, due to the fact

that there are substantial material issues of fact which would

require a triai_in this matter.

—

| 63

62 73 CERTIFIED COPY

2. In the alternative, Respondent would ask for a clari- UNITED STATES COURT OF AP PEALS

fication of the Board’s recitation of the facts in this matter with A True Copy:

reference to the fact that on January 30, 1974 Charging Party

did in fact request bargaining with Respondent, and that

charges were not filed in this matter until more than six months

after this demand was made. It would seem clear that were the

Board’s position taken to its logical conclusion, there would

never be a tolling of the 10 (b) period in a case of this type,

since all the Union would need to do is drop a line to a res-

pondent more often than every six months to perpetuate the

10 (b) period, contrary to its plain meaning.

For the Seventh Circuit

Teste: Unpublished Order

Chicago, lilinois 60604 Not To Be Cited

Clerk of the United Argued January 7, 1976

States Court of Appeals

for the Seventh Circuit. January 20, 1976.

Before

Hon. LUTHER M. SWYGERT, Circuit Judge

69 WHEREFORE, Respondent makes its exception to the Hon. ROBERT A. SPRECHER, Circuit Judge ‘

Board’s ruling on General Counsel’s motion for summary judg- Hon. JULIUS J. HOFFMAN, Senior District Judge

ment for the record in this matter, and moves the Board to

explicate its Decision on the 10 (b) issue in this matter, parti- NATIONAL LABOR RELATIONS BOARD, On Application

cularly in light of such cases as N.L.R.B. v. Bedford-Nugent Petitioner, for Enforcement

Corp., 317 F. 2d 861 (CA-7 1963). of an Order of

No. 75-1514 VS. the National

Respectfully submitted, Labor Relations

WRIGHT MOTORS, INC., Board.

KAHN, DEES, DONOVAN & KAHN Respondent.

ORDER

Upon consideration of the record, the briefs, and the oral

argument, we conclude that there was no abuse of discretion on

the part of the Regional Director in Sustaining the challenges

Joseph A. Yocum

Attorneys for Respondent

KAHN, DEES, DONOVAN & KAHN to the ballots of employees Joe Wright and Steve Groves in the

305 Union Federal Building representation election. NLRB v. Caravelle Wood Products,

Evansville, Indiana 47708 Inc., 466 F.2d 675 (7th Cir. 1972). Accordingly, the Board

Tel: (812) 423-3183 properly held that the Company (Respondent) violated section

Of Counsel 8 (a) (5) of the National Labor Relations Act by refusing to

bargain with the duly certified representative of its employees.

The Board’s complaint under section 10 (e) of the Act was

not time barred by section 10 (b) of the Act. NLRB vy. Basic

I Ria ia 6 ee

64 65

Certified Copy

74 UNITED STATES COURT OF APPEALS

Wire Products, Inc., 516 F.2d 261 (6th Cir. 1975); NLRB vy.

Louisiana Bunkers, Inc., 409 F.2d 1295 (Sth Cir. 1969). | FOR THE SEVENTH CIRCUIT

IT IS ORDERED that the Board’s order shall be enforced. NATIONAL LABOR RELATIONS BOARD, ) U.S.C.A

) FILED

* The Honorable Julius J. Hoffman, United States Senior Petitioner, ) Ith Circuj

District Judge for the Northern District of Illinois, is sitting 5»

by designation v. ) Feb 25 1976

)

WRIGHT MOTORS, INC., ) No. 75-1514

)

Respondent. ) Thomas F. Strube

Clerk

JUDGMENT

Before: LUTHER M.SWYGERT and ROBERT A. SPRECHER,

Circuit Judges and JULIUS J. HOFFMAN, Senior

District Judge*

THIS CAUSE came on to be heard upon an application of

the National Labor Relations Board for enforcement of a

certain order issued by it against Respondent, Wright Motors,

Inc., Evansville, Indiana, its officers, agents, successors, and

assigns, on January 23, 1975. The Court heard argument of

respective counsel on January 7, 1976, and has considered the

briefs and transcript of record filed in this cause. On January

20, 1976, the Court being fully advised in the premises, handed

down its Order granting enforcement of the Board’s Order.

In conformity therewith, it is hereby

ORDERED AND ADJUDGED by the United States Court

of Appeals for the Seventh Circuit that the said order of the

National Labor Relations Board in said proceeding be enforced,

and that the Respondent, Wright Motors, Inc., Evansville,

Indiana, its officers, agents, successors, and assigns, abide by

and perform the directions of the Board in said order contained.

IT IS FURTHER ORDERED AND ADJUDGED by the

Court that costs shall be taxed against Respondent.

Circuit Judge, United States

Court of Appeals for the

Seventh Circuit

Approved as to form:

Attorney for Respondent

Clerk of the United States

Court of Appeals for the

Seventh Circuit.

A True Copy:

Teste:

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