# Petition — Wright Motors, Inc. v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2415%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 429 U.S. 826 ## Text 7. pueerensinmmmnentt Suprer rt. U.S. : —— ; | 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 SOE dd db ne nadd ee neds caccdecsenes 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 0 Ee ae ee GEES cc teccuscncesesecsuttnenceseodex CASES CITED Continental Baking Company, PP EE FPN FER IEEE Se cccvcccccsesessoess il 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 Uecmiintin ge a rr 9 STATUTES Sh ED é-vscene tesa dbadeusdiwevadlsUddscokeks 6, 7,8 ti seuds ede dite ieeeee ed eaten te cent 6, e Sec. 9 — PeerererererrrrrTere focetaweeresshbdeun Sec. a ; MaeVendedeehbenesesuee éshtcenws 4,5, 10,11 Pe IED 606-0600 4e6eteueenssedbeaeswiesdounes 2 I er ee 15 Decision of Court Below ..........cccccceeecees 1A TE cS deb enc006en0cdeceaedsewnts 1B OO E-’"”T Ce iv In The 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. Lp 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). 4 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 I. 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- 9. 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) 0 -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 . ° = t CHRONOLOGICAL LIST OF 17 RELEVANT DOCKET ENTRIES In the Matter of: Wright Motors, Inc. Board Case Nos. 25-CA-6576 25-RC-5320 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 18 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 Te 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”’ 19 10 20 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- 21 ll te i) 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. 23 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. 26 13 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. . .” 27 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 28 16 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 | 17 and Employer-Respondent’s rights of appeal as granted it 29 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 By Joseph A. Yocum Attorneys for Employer KAHN, DEES, DONOVAN & KAHN 305 Union Federal Building Evansville, Indiana 47708 Of Counsel 30 31 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 oa Pdtantei since OE Sethian * 5 eB te 32 31 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 32 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 34 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 35 34 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 35 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. A. 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 4] 36 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, 43 37 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 38 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. (c) During the past twelve months, a representative 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 39 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. (c) At all time since October 19, 1973, and continuing 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 re 40 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. ~ 45 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 41 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 —- 4 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” 46 “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. 47 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. 47 48 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 48 49 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. 55 50 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 By 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 56 51 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 57 52 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- 58 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 53 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). 60 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. 55 61 56 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. s 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. 62 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 57 63 64 58 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- 65 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- 59 66 60 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.” 68 61 D-9560 (c) Notify the Regional Director for Region 25, in writing, 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 By 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. 66 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: --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2415%3A1. Public record. Not legal advice.