Petition for Writ of Certiorari — Leebro Management, Inc. v. National Labor Relations Board
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IN THE JIC . FP if. SPANIOL, .
CLERK
& D
1985
|
Supreme Court of the United States
October Term, 1985
LEEBRO MANAGEMENT, INC.
D/B/A SAMSON BUICK, INC.,
Petitioner,
VS.
NATIONAL LABOR RELATIONS BOARD,
Respondent.
On Writ OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS OF THE THIRD CIRCUIT.
PETITION FOR A WRIT OF CERTIORARI ON
BEHALF OF LEEBRO MANAGEMENT, INC.
TUCKER ARENSBERG, P.C.
HENRY W. EWALT, ESQUIRE*
1200 Pittsburgh National Building
Pittsburgh, Pennsylvania 15222
(412) 566-1212
Attorneys for Petitioner
*Counsel of Record
Batavia Times Publishing Co ~iPe
Harold |. Berkoben
Pittsburgh. Pennsylvania (112! 881-7463
°
Statement of the Questions Presented ;
for Review
A. Is the National Labor Relations Board obligated
to dismiss a representation petition in accordance with
the Board's long established contract bar rule where a
unior at a time other than during the Board-sanctioned
90 to 60 day window period, filed a representation
petition for a proposed bargaining unit which
encompasses employees in a pre-existing bargaining unit
who are covered by a valid collective bargaining
agreement and who are represented by a second union?
B. Must a_union-filed reresentation petition be
dismissed by the National Labor Relations Board when
it names, as the respondent employer, a corporate entity
which does not meet the statutory, National Labor
Relations Board or judicial definition of employer at the
time the representation petition was filed?
C. When a representation petition is filed with the
National Labor Relations Board that names, as the
respondent employer, a corporate entity which does not
employ the employees sought to be represented by the
union which filed the petition, is the National Labor
Relations Board compelled to dismiss said petition?
D. Should the Supreme Court of the United States
reverse the enforcement order of the Third Circuit Court
of Appeals finding that Petitioner violated the Labor
Management Relations Act, as amended, when that
enforcement order is in conflict with established
precedent of the National Labor Relations Board, other
Circuit Courts of Appeal, and previous decisions of the
Third Circuit, and no rationale is given for that
departure from precedent?
TABLE OF CONTENTS.
Statement of the Questions Presented for Review...
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Statement of JareGiewioes «. «os kc cn sn wacadisase
Statutory and Regulatory Provisions .............
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A. The NLRB and Lower Court Erred in
Failing to Dismiss a Representation Petition
Which Was Barred by the Existence of a Valid
Collective Bargaining Agreement ............
B. The NLRB Decision Ignores’ the
Statutorily Mandated Definition of ‘‘Employer”’
and Jurisdiction of the NLRB...............
Cemetettee oo. ish 80S tee
Appendix:
Judgment Order of the United States Court of
Appeals for the Third Circuit, dated August 6,
Order Denying Petition for Rehearing, United
States Court of Appeals for the Third Circuit,
dated September 12, 1966. ..... 0... csvesces
10
16
20
la
Page
Decision and Order of the National Labor
Relations Board in Case 6-CA-17106, dated
EE eae
Decision and Directicn of Election of the Acting
Regional Director, Region 6, National Labor
Relations Board, dated October 25, 1983 ......
TABLE OF AUTHORITIES.
CASES.
Appalachian Shale Products Company, 121 NLRB
1160, 42 LRRM 1506 (1958). ..................
Bally Case and Cooler, Inc. v. NLRB, 416 F.2d 902
ees ae 5. oka 5.44 6 08-5 005k ea 4
Brockway Motor Trucks v. NLRB, 582 F.2d 720 (3d
ECE eee
Deluxe Metal Furniture Company, 121 NLRB 995,
a
General Extrusion Company, 121 NLRB 1165, 42
NG Cow cc ek a GN GAS Reece ececaes
Leonard Wholesale Meats, Inc., 186 NLRB 1000, 49
ea Ga a 5 an a k'o.u 6's eek 0
Memorial Hospital of Roxborough v. NLRB, 545
en Me MOE A, BUOGD oi cane ccescnss
Midway Lincoln Mercury, Inc., 180 NLRB 58, 72
ee kata k a wae Sake eA eee es
Monmouth Medical Center v. NLRB, 604 F.2d 820
ee ekg ask nce ead cansecancss
NLRB v. A. J. Tower Co., 329 U.S. 324 (1946). .....
NLRB v. Appleton Electric Company, 296 F.2d 202
las oak kA AAAs 34 bese 8 88S
NLRB v. Bayliss Trucking Corporation, 432 F.2d
ee Ay 0k 04 oo A N04 4 a0 Nase
5a
15a
12
iv.
Page
NLRB v. Bob’s Big Boy Family Restaurants, 693
fe of 0 eee er rr re 13
NLRB v. Burns International Security Service, Inc..
MULTAN coe 18
NLRB v. Campbell Products Department, 623 F.2d
EE SS nae cc atch baeccdkcsis buen s 13
NLRB v. Circle A & W Products Company, 647
ie ee. SED eck vcs wicdeec cc esne een 13,14
NLRB v. E. C. Atkins and Company, 331 U.S. 398
SRUEUES 5558 CEM oak eae ae Oa RRA RES eee ee 16
NLRB v. Metropolitan Life Insurance Co., 380 U.S.
SME 8c Gc ob OS ese cake ab kcons ere ee ee 12
NLRB v. New Madrid Manufacturing Company, 215
fk Ff 4 ee ee 16
NLRB v. Osborn Transportation, Inc., 489 F.2d
See Ge ly I Reco de Whee ae ake dee i2
NLRB v. Textron, Inc., 416 U.S. 267 (1975). ....... 16
Retired Persons Pharmacy v. NLRB, 519 F.2d 486
st OR FP rin erry 11
Universal Camera Corporation v. NLRB, 340 U.S.
OR RAE 8S ORG Ss Bae NE ee R RAAT EE ORS 12
STATUTES.
gO Bree re rn eer seer 2,10
Pn ED 6 ad a ss Ras heh abe eee ee 2,3
NN RIE bos fa ckc ns caccewaeen ene Oe 3,7,16
See Ws NNN 3.5 6h kk cbc cae eee on Cees 3
Pe Ws GUND 65 004s Catia arose es 3
Vv.
Opinions Below
The Opinion and Order of the National Labor Relations
Board dated July 23, 1984, at Case No. 6-CA-17106, is
reported at 271 NLRB No. 63, 117 LRRM 1344 (1984)
and printed herein at page 5a.
The Judgment Order of the United States Court of
Appeals for the Third Circuit entered August 6, 1985 is
not reported but is printed herein at page la.
The Order Denying Petition for Rehearing, United
States Court of Appeals for the Third Circuit, dated
September 12, 1985 is not reported but is printed herein
at page 3a.
IN THE
Supreme Court of the United States
October Term, 1985
Sia
LEEBRO MANAGEMENT, INC
D/B/A SAMSON BUICK, INC.,
Petitioner,
VS.
NATIONAL LABOR RELATIONS BOARD,
Respondent.
On Writ oF CERTIORARI TO THE UNITED STATES CouRT
oF APPEALS OF THE THikD CIRCUIT.
PETITION FOR A WRIT OF CERTIORARI ON
BEHALF OF LEEBRO MANAGEMENT, INC.
Statement of Jurisdiction
The jurisdiction of this Court is based upon the
following:
1. Review of the Order of the United States Court of
Appeals for the Third Circuit at No. 84-3734, August 6,
1985, enforcing an order of the National Labor Relations
Board at Case No. 6-CA-17106, dated July 23, 1984.
2. Order of the United States Court of Appeals for
the Third Circuit at No. 84-3734, dated September 12,
1985, denying the Motion for Rehearing filed by
LEEBRO Management, Inc.
3. The statutory provisions of the Labor Management
Relations Act, Section 10(e), as amended, 29 U.S.C.
$160(e), and the Judicial Code, 28 U.S.C. $2350(a).
2
Statutory and Regulator, Pi visions
The following statutory provisions are involved in the
case:
Labor-Management Relations Act of 1947 as
amended, 29 U.S.C. $141 et seg.
Sec. 1.(b) Industrial strife which interferes with
the normal flow of commerce and with the full
production of articles and commodities for
commerce, can be avoided or _ substantially
minimized if employers, employees, and labor
organizations each recognize under law _ one
another's legitimate rights in their relations with
each other, and above all recognize under law that
neither party has any right in its relatio.® with any
other to engage in acts or practices which jeopardize
the public health, safety, or interest.
It is the purpose and policy of this Act, in order
to promote the full flow of commerce, to prescribe
the legitimate rights of both employees and
employers in their relations affecting commerce, to
provide orderly and _ peaceful procedures for
preventing the interference by either with the
legitimate rights of the other, to protect the rights
of individual employees in their relations with labor
organizations whose activities affect commerce to
define and proscribe practices on the part of labor
and management which affect commerce and are
inimical to the general welfare, and to protect the
rights of the public in connection with labor
disputes affecting commerce.
29 U.S.C. §151(b)
DEFINITIONS
Sec. 2. When used in this Act—
(2) The term “employer” includes any person
acting as an agent cf an employer, directly or
indirectly, but shall not include the United States or
-
3
any wholly owned Government corporation, or any
Federal Reserve Bank, or any State or political
subdivision thereof, or any person subject to the
Railway Labor Act, as amended from time to time,
or any labor organization (other than when acting as
an employer), or anyone acting in the capacity of
officer or agent of such labor organization.
29 U.S.C. $152(2)
(3) The term “employee” shall include any
employee, and shall not be limited to the employees
of a particular employer, unless the Act explicitly
states otherwise, and shall include any individual
whose work has ceased as a consequence of, or in
connection with, any current labor dispute or
because of any unfair labor practice, and who has
not obtained any other regular and substantially
equivalent employment, 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 individual employed by his parent or
spouse, or any individual having the status of an
independent contractor, or any individual employed
as a supervisor, or any individual employed by an
employer subject to the Railway Labor Act, as
amended from time to time, or by any cther person
who is not an employer as herein defined.
29 U.S.C. §152(3)
Sec. 8.(a) It shall be an unfair labor practice for
an employer—
(1) to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed
in section 7;
29 U.S.C. §$158(a)(1)
(5) to refuse to bargain collectively with the
representatives of his employees, subject to the
provisions of section 9a).
29 U.S.C. §$158(a)(5)
ee
4
Statement of the Case
This case is an enforcement proceeding brought by the
National Labor Relations Board (‘‘NLRB” or ‘‘Board’’)
to enforce its Order dated July 23, 1984, in which it
held that Petitioner LEEBRO Management, Inc.
(“LEEBRO’), violated the Labor Management Relations
Act (the ‘‘Act’’) by refusing to bargain with a union
certified by the Board to represent its employees.
The case arises from a certification of representation
issued in NLRB Case Number 6-RC-9401, certifying the
United Automobile, Aerospace and _ Agricultural
Implement Workers of America, AFL-CIO (‘UAW’) as
the exclusive representative of employees of LEEBRO
Management, Inc., Petitioner herein. Subsequent to that
certification and order from the National Labor Relations
Board, a charge of unfair labor practices alleging
LEEBRO’s refusal to bargain with that union was filed
with the Board at NLRB Case Number 6-CA-17106. The
Board's General Counsel filed a motion for summary
judgment in that case on March 1, 1984, with the Board
issuing a decision and order granting the motion for
summary judgment on July 23, 1984. On or about
November 20, 1984, the National Labor Relations Board,
through its Deputy Associate General Counsel, filed an
application for enforcement of its order with the United
States Court of Appeals for the Third Circuit.
On August 6, 1985, the United States Court of
Appeals for the Third Circuit entered an order enforcing
the Board’s Order. A timely Petition for Rehearing was
filed, and the Third Circuit denied the Petition by Order
dated September 12, 1985.
5)
Statement of the Facts
This is an application for enforcement brought by the
National Labor Relations Board seeking enforcement of
its order finding that LEEBRO Management, Inc.
violated the provisions of the Lahor Management
Relations Act by refusing to bargain »ith a union for
which a certification of exclusive representative was
issued.
LEEBRO contends that the underlying certification of
the bargaining representative is invalid, and therefore,
the unfair labor practice finding by the Board was
invalid. Therefore, a review of the facts concerning the
representation petition is essential to disposition of this
case.
LEEBRO Management, Inc., is a Pennsylvania
corporation which, since September 1, 1983, has been
operating and doing business as Samson Buick
Company, a Buick automobile dealership offering sales
and leasing of new and used automobiles, service and
parts sales.
At the time of and prior to the filing of the
represeritation petition in Case 6-RC-9104, the
underlying representation case, the dealership was owned
and operated by Samson Buick Company, Inc., a
Pennsylvania corporation. LEEBRO, its owners,
directors and officers had no connection whatsoever with
Samson Buick Company, Inc. For a number of years
prior to the filing of the petition, a unit of employees at
Samson Buick Company, Inc., consisting of full time
mechanics and apprentice mechanics, was represented by
the Associated Trades and Crafts Union (‘“‘ATCU”’).
Samson Buick Company, Inc. and the ATCU had
entered into a series of collective bargaining agreements
during that period. The last of those agreements was
executed March 31, 1981, and was due to expire under
6
its own terms on March 31, 1983. However, the contract
was extended for a period of one year under an
automatic renewal clause contained in the agreement.
Therefore, the expiration date of that. contract was
March 31, 1984.!
Prior to September 1, 1983, Samson Buick Company,
Inc., entered into arms-length negotiations with
LEEBRO, for the sale and purchase of the assets of
Samson Buick Company, Inc. Those negotiations
culminated in an actual sale and transfer of all of the
assets of Samson Buick Company, Inc. to LEEBRO
Management. Under the terms of the asset purchase
agreement and other sales documents, LEEBRO was to
take actual possession and operating responsibility for
the business effective September 1, 1983.
Pursuant to the terms of that agreement, LEEBRO in
fact did purchase the assets of Samson Buick Company,
Inc. Although the closing took place on August 29 and
30, 1983, LEEBRQO did not take possession of the assets
or control of the operations until September 1, 1983, as
provided for in the parties agreement.
On August 31, 1983, the day of the filing of the
petition by the UAW, LEEBRO had no ownership,
control or authority with regard to the employees, the
assets or the operation of Samson Buick Company, Inc.
LEEBRO had no financial control or interest in the
receipts or any other business interest in the dealership
on August 31, 1983.
‘The UAW had previously attempted to organize employees of
Samson Buick Company, Inc. at NLRB Case No. 6-RC-9359. That
petition was dismissed upon the Board's finding that the ATCU
agreement with Samson Buick Company, Inc. was automatically
extended to March 31, 1984, thus barring the UAW's petition under
the Board's ‘‘contract bar” rules.
7
On that date, LEEBRO’s only employees were John A.
Lee, Jr., its president, and Richard Lee, John’s brother
and soon to be used car manager. Neither John Lee nor
Richard Lee were eligible for union membership because
they are both classified as supervisors (29 U.S.C.
§152(3)). No employees who were eligible to vote in an
NLRB election or for union membership were hired by
LEEBRO until September 1, 1983, at which time
ownership and control of the assets of Samson Buick
Company, Inc., was assumed by LEEBRO.
LEEBRO and Samson Buick Company, Inc. were, at
all times, separate and distinct entities, with no common
ownership or control and no interrelationship between
principals of the two corporations.
On August 31, 1983, the collective bargaining
agreement between Samson Buick Company, Inc. and
the ATCU was still in effect and had not been repudiated
by either party.
On August 31, 1983, the UAW filed its representation
petition, seeking to represent a unit of employees of
LEEBRO, including those employees which were in the
pre-existing bargaining unit represented by the ATCU.’
Following the filing of the petition, the National Labor
Relations Board held a hearing on September 26, 1983,
for the purpose of receiving evidence on the
representation petition. At the hearing, the above facts
were established.
Following the hearing, on October 25, 1983, the Acting
Regional Director cf Region 6 of the National Labor
Relations Board issued a Decision and Direction of
Election. In that decision, the Acting Regional Director
? Although the petition indicates that the employer is Samson Buick
Co. (Lee Brothers, Inc.), the petition was amended at the hearing to
reflect the correct name of LEEBRO Management, Inc.
8
concluded that the petition was timely filed, that there
was a sufficient showing of interest among employees in
the proposed bargaining unit, that the proposed unit was
an appropriate unit for collective bargaining, and
directed that an election be held among the employees
recited in the petition. A timely request for review of the
Regional Director’s decision was filed by LEEBRO on
November 4, 1983, and denied by the National Labor
Relations Board on November 28, 1983.
On November 30, 1983, an election was held among the
employees of LEEBRO in the proposed bargaining unit.
The employees split their votes among the ATCU, the
UAW and no representative, but the majority voted for
the UAW. On December 8, 1983, the National Labor
Relations Board issued a certification of representative,
certifying the UAW as the exclusive bargaining
representative for the employees in the bargaining unit.
Following that certification, LEEBRO continually
maintained that the certification was invalid, due to the
untimely filing of the representation petition by the
UAW and the bar of the pre-existing collective
bargaining agreement between its predecessor, Samson
Buick Company, Inc., and the ATCU. LEEBRO,
therefore, refused to bargain with the UAW until such
time as review of the underlying certification could be
obtained.
On February 10, 1984, a charge of unfair practices was
filed by the UAW and docketed at case number 6-CA-
17106. A complaint was issued upon that charge on
February 23, 1984. That complaint alleged that
LEEBRO had refused to bargain with a_ properly
certified bargaining representative of the employees.
LEEBRO’s answer to the complaint, filed February 28,
1984, admitted the refusal to bargain, but denied that
the certification issued by the Board was valid and
denied it committed an unfair labor practice.
9
On March 1, 1984, coursel for the Board’s General
Counsel filed a Motion for Summary Judgment, which
was granted by Decision and Order from the National
Labor Relations Board on July 23, 1984. Subsequent to
issuance of that order, LEEBRO continued to refuse to
bargain with the UAW, upon the grounds that the
certification of the UAW was invalid. On November 20,
1984, the National Labor Relations Board’s general
counsel filed an Application for Enforcement of its order
with the United States Court of Appeals for the Third
Circuit.
Following the filing of briefs and presentation of
argument, the Third Circuit entered an order on August
6, 1985 enforcing, without explanation, the NLRB order.
Following a Petition for Rehearing filed by LEEBRO,
the Court on September 12, 1985, denied rehearing.
The matter is now presented to your Honorable Court
upon a Petition for Writ of Certiorari.
10
ARGUMENT
The NLRB and the Third Circuit Court of Appeals
have in this case sanctioned a union’s representation
efforts which are totally at odds with both the Labor
Management Relations Act (the ‘‘Act’’) and the
established precedent of both the Board and the Courts.
This Honorable Court has never issued a definitive ruling
upon the issues here presented, which to counsel's
knowledge, present a unique situation requiring this
Court's guidance in the balancing of the rights of
employees, employee representatives and employers in a
rival union representation setting. For these reasons it is
important that this Court review this question of Federal
Labor Law.
A. The NLRB and Lower Court Erred in Failing to
Dismiss a Representation Petition Which Was Barred by
the Existence of a Valid Collective Bargaining
Agreement.
It is well established that the purpose of the Labor
Management Relations Act of 1947 is te minimize
industrial strife and to provide orderly and peaceful
procedures for resolving disputes between labor and
management. 29 U.S.C. §151(b). Moreover, the Board
and the courts are charged with the duty of applying and
interpreting the Act to achieve stability of labor
relations and encourage peaceful resolution of disputes.
Brockway Motor Trucks vs. NLRB, 582 F.2d 720 (3d Cir.
1978); NLRB vs. Appleton Electric Company, 296 F.2d
202 (7th Cir. 1961).
In its interpretation of these Congressional mandates,
the Board has determined that a written and binding
collective bargaining agreement, covering substantial
terms and conditions of employment and encompassing
11
an appropriate bargaining unit operates as a bar to a
petition for certification as a representative by a rival
union. Appalachian Shale Products Company, 121 NLRB
1160, 42 LRRM 1506 (1958). With certain exceptions not
relevant to this proceeding, the Board has since 1958
consistently applied this so-called ‘‘contract bar rule.”’
One of the most notable exceptions to this rule, and the
only one germane to the case at issue, is the ‘window
period,’ which provides that a petition for representation
by a rival union may only be filed at a time which is
more than 60 but less than 90 days before the expiration
date of the existing contract. Any petition filed at any
other time during the pre-existing contract's term is
untimely. Leonard Wholesale Meats, Inc., 136 NLRB
1000, 49 LRRM 1901 (1962); Deluxe Metal Furniture
Company, 121 NLRB 995, 42 LRRM 1470 (1958). This
concept of the ‘“‘window period’ has been accepted and
consistently applied by both the Board and the courts
since its inception. See, e.g., Retired Persons Pharmacy
vs. NLRB, 519 F.2d 486 (2d Cir. 1975); NLRB vs.
Bayliss Trucking Corporation, 432 F.2d 1025 (2d Cir.
1970); Bally Case and Cooler, Inc. vs. NLRB, 416 F.2d
902 (6th Cir. 1969).
Applying both the basic contract bar rule and the
window period enunciated above to the facts of this case
clearly shows that the Board, and the Court of Appeals
for the Third Circuit, failed to apply this principle in a
fashion consistent with the established precedent.
On August 31, 1983, the date upon which the
representation petition was filed, the predecessor owner
of the automobile dealership was still in power, still
operating the -business, and its employees were still
governed by the terms and conditions of the collective
bargaining agreement with the Associated Trades and
12
Crafts Union, which agreement did not expire until
March 31, 1984. Indeed, the Board's acting Regional
Director in the Decision and Direction of Election,
specifically found that the representation petition was
filed at a time when a collective bargaining agreement
was in full force and effect.
Therefore, under the uncontradicted precedent of the
Board's prior holdings, it is clear that no petition could
be entertained by the NLRB on August 31, 1983, since
there was a validly existing collective bargaining
agreement, and the petition was filed prior to 90 days
before the expiration of that agreement. There is nothing
to the contrary in the record or in the decisional law of
the NLRB, the Circuit Courts or This Honorable Court
to lead to a contrary conclusion.
The Circuit Courts of Appeal and this Court have
repeatedly held that while the NLRB has considerable
latitude and discretion to establish parameters for
representation matters, once established, those policies
must be followed until such time as they are modified or
eliminated. Monmouth Medical Center v. NLRB, 604
F.2d 820 (3d Cir. 1979); NLRB v. Osborn Transpcrtation,
Inc., 489 F.2d 1275 (5th Cir. 1979); NLRB v. A.J. Tower
Co., 329 U.S. 324 (1946). However, in NLRB v.
Metropolitan Life Insurance Co., 380 U.S. 438 (1965),
this Court noted that, when the Board reaches a
conclusion which is different from that in prior cases, the
“reasons for the decisions in and distinctions among
these cases’ must be given to eliminate the appearance
of arbitrariness. Id. at 442; accord, Memorial Hospital of
Roxborough v. NLRB, 545 F.2d 351, 357 (3d Cir. 1976).
It is the responsibility of the reviewing court to ensure
that the Board’s action is both reasonable and consistent
with the Act. Universal Camera Corporation v. NLRB,
340 U.S. 474 (1951).
13
Neither the Board nor the Third Circuit gave any
rationale for the departure from the clearly established
Board precedent, and made no attempt to overrule or
justify overruling the pre-existing decisions. The finding
that the petition was timely and the subsequent
certification of the UAW as the exclusive representative
of the employees during the term of a valid contract is a
complete departure from Board precedent and attempts,
sub silentio, to overturn years of established principles.
The Board has taken the position, and presumably the
Court of Appeals for the Third Circuit has approved,
that the acceptance of the untimely filed petition is a de
minimus departure from the contract bar rule. However,
the policy for that rule must be examined prior to this
Court sanctioning such a departure from it.
The foundation of the contract bar rule, as noted above,
is the need to preserve stability during the term of an
existing collective bargaining agreement. See, e.g., NLRB
vs. Bob's Big Boy Family Restaurants, 693 F.2d 904 (9th
Cir. 1982). Since the NLRB created the contract bar
rule, it is able to modify it in the exercise of its
discretion. NLRB vs. Campbell Products Department,
623 F.2d 876 (3d Cir. 1980). Nevertheless, that discretion
must be utilized to apply the principle in a fashion to
effectuate its policy underpinnings, and also to be
consistent with the other policies of the Act. Stability of
labor relations cannot be sacrificed under the guise of
preserving employee freedom of choice. NLRB vs. Circle
A & W Products Company, 647 F.2d 924 (9th Cir. 1981).
* The filing of a representation petition some seven months prior to
expiration of an existing agreement serves to disrupt labor relations at a
time when no conflict exists during the life of the agreement.
14
The Ninth Circuit in Circle A & W properly noted that:
The policy of preserving industrial stability is of
sufficient importance that the Board is required to
implement the contract bar rule to protect the
employer's rights as well as those of the
employees.... Where the objectives of contract
stability and adequate employee representation
conflict, the Board must exercise its discretion to
reach an appropriate balance, but it must give
explicit recognition to both sides of this balance.
Id. at 926.
In the instant case, the Board's unreasoned departure
from the contract bar rule does not balance the interests
of the employee and employer in order to effectuate the
policy of the Act. Indeed, by disregarding the untimely
filing of the petition, the Board places at issue questions
concerning representation which otherwise would never
have arisen had the petition been properly dismissed as
untimely. Since established precedent holds that a
petition filed more than 90 days before the expiration
date of an existing collective bargaining agreement does
not mature on the 90th day, Midway Lincoln Mercury,
Inc., 180 NLRB 58, 72 LRRM_ 1575 (1969), some
rationale for this departure must be given by the Board.
None has been provided.
To permit such departure from this rule can only do
harm to the basis for the contract bar rule. If the
untimely filing of a petition is waived as only a de
minimus departure, no guidance is given as to when an
untimely petition becomes impermissible. The purpose
for the contract bar rule can only be served by its
strictest application, and the Board, until this case, has
so applied it even if it resulted in dismissal of a petition
filed a brief period before the window period. Such
consistency is desirable, especially in light of the fact
15
that an appropriate remedy for a rival union is merely to
withdraw the petition, and file it in a timely fashion
during the window period.
Further, the Board's radical departure from its prior
holdings and those of the Courts of Appeal totally
fails to consider the interest of the employer in this
situation. The instant case represents a new employer
purchasing an ongoing business with the expectation
that a collective bargaining agreement would continue
until the date of its expiration. If a new employer must
concentrate its efforts on settling disputes between two
or more rival unions and its employees, rather than
concentrating upon building its new enterprise, the
chances of that business’s survival are substantially
lessened. It cannot be the policy of the Labor
Management Relations Act to lessen the chances of
survival of a new business, or even impeding the free
transferability of an ongoing enterprise by creating the
potential for chaos in employee relations.
In sum, the decision of the NLRB as enforced by the
Third Circuit Court of Appeals simply departs radically
from the established precedent of both the Board and the
other Courts of Appeal as to the time limits of filing of
representation petitions. This departure is not explained,
and indeed may not be explained, by reference to
effectuating the underlying policies of the Act. Rather, it
evinces a complete disregard for both the underlying
policy of the contract bar rule, as well as the interest of
the Congress in stability of labor relations. This
departure from the long standing rule is in conflict with
other Circuits and has never been sanctioned by this
Court. Therefore, this ruling justifies review and
guidance by this United States Supreme Court for both
the NLRB and Courts of Appeal.
iniacitcacabiiiinie
16
B. The NLRB Decision Ignores the Statutorily
Mandated Definition of ‘Employer’ and Jurisdiction of
the NLRB. |
The ruling of the .. », and the approval of it by the
Court of Appeals for the Third Circuit, goes far beyond
the mere creation of a new and unjustified exception to
the contract bar rule. It further stretches beyond reason
the definition of ‘“‘employer’’ as contained in the Act,
both as it applies to the ability of a union to represent
employees of an employer, as well as the NLRB’s ability
to hear a case involving a business entity which does not
meet that statutory definition.
The Act contains a specific definition of employer,
which has been interpreted in decisional law as
encompassing both the common law and _ generally
accepted interpretation of that term. NLRB us. E. C.
Atkins and Company, 331 U.S. 398 (1947). It is a mere
common sense interpretation of that term that in order
for one to be an employer, one must have employees who
are covered by the Act. Note that supervisors and
corporate officers are excluded by the Act and Board
from the definition of employees. Section 2(3) of the Act,
29 U.S.C. $152(3); NLRB v. Textron, Inc., 416 U.S. 267
(1975). In NLRB vs. New Madrid Manufacturing
Company, 215 F.2d 908 (8th Cir. 1954), the Eighth
Circuit Court of Appeals defined the term to encompass
“anyone who owns, or who engages in operating, for
himself, a business having employees is an employer”.
215 F.2d at 913 (emphasis supplied).
However, the NLRB and the Third Circuit Court of
Appeals, in this case, have totally ignored the
Congressionally-mandated definition, as well as the
common sense _ interpretation of this term, by
17
interpreting ‘employer’ to mean not merely one who has
employees, but one who, at some point in the future,
may have employees.
A review of the factual history of this case clearly
shows that, on the date the representation petition was
filed by the UAW, August 31, 1985, LEEBRO
Management, Inc., had absolutely no employees
whatsoever within the classes of the bargaining unit
which the union sought to represent. This raises two
important considerations.
First, in order for a union to represent employees of an
employer, there must necessarily be both an employer
and some employees to represent. In the instant case, at
the time the petition was filed there were neither
employees nor an employer in existence. To suggest
otherwise completely ignores both the record and the
facts as they existed on that date and the definitions in
the Act.
Second, since LEEBRO, on August 31, 1983, was not
within the definition of employer, the NLRB simply had
no jurisdiction over the parties
The implications of the Board's disregard for the
statute are legion. A union would be free to file petitions
for representation or certification long before the sale of
a business goes into effect or, conceivably, before a new
business starts into operation. Such petitions, filed
before the Board has jurisdiction over the parties and
the business entity has any employees, would simply be
permitted to ripen over the passage of time, to be acted
upon by the Board when and if the business entity
comes within the definition and jurisdictional standards
18
for the Board to act. This certainly is not the
Congressionally mandated purpose for the Act or the
National Labor Relations Board itself. By thus putting
unions and employers-to-be within the Act, chaos will
surely result.
If this Third Circuit enforcement order is permitted to
stand, the Board and Courts will be attempting to decide
how long before the time an entity has employees may a
union file a petition. Here the Board ruled that one day
was de minimus. Would 36 hours, two days, a week, a
month, a year be likewise classified? The Beard and
Courts have many important matters to determine and
the preceding question is net one of them.
The former rule that a petition for representation
cannot be filed until a business entity becomes an
employer by actually employing employees in the
categories for which the union is petitioning should be
restored by this Court.
The Board apparently relied upon the fact that
LEEBRO Management, Inc. may have been a “successor
employer’ to the previous owner, and therefore, found
the petition to be acceptable. The Board’s reasoning
jumps from the finding of ‘‘successor employer’’ to the
conciusion that the pre-existing collective bargaining
agreement was removed as a bar, because successor
employers are not bound by the terms of an agreement
negotiated by the predecessor employer. NLRB v. Burns
International Security Service, Inc., 406 U.S. 272, 281
(1972). However, such a rationale glosses over the
uncontroverted facts in this matter. In the leading case
concerning successor employers, the NLRB clearly
stated that “assumption of the operations by a purchaser
in good faith who had not bound himself to assume the
bargaining agreement of the prior owner of the
19
establishment removes the contract as a bar.’ General
Extrusion Company, 121 NLRB 1165, 42 LRRM 1508
(1958) (emphasis supplied).
It is significant that in this leading case, the Board did
not use the terms ‘‘agreement to purchase’ or
“execution of documents,’ but rather chose to utilize
the term ‘‘assumption of the operations’’, indicating that
a pre-existing contract is removed as a bar only at the
time the purchaser actually takes over operation of the
business, rather than at some prior moment.
The NLRB’s rationale then, is clearly without
foundation since, at the time the petition was filed,
LEEBRO Management, Inc., was not an employer or
successor and did not become such until it ‘“‘assumed the
operations’’ on September 1, 1983.
The NLRB’s order which was affirmed and enforced by
the Court of Appeals for the Third Circuit departs
substantially from the Congressionally-mandated
definitions of employer and employee, and serves to
throw the question of jurisdiction and power of the
Board into chaos. The only manner in which this chaos
can be avoided is by the strict application of the
statutory and decisional law in the fashion in which it
has been applied since the enactment of the Act. Clearly,
the Board has gone far beyond the enforcement of the
Act, and it is seeking to redefine its own jurisdiction and
authority to act. Irrespective of whether the Board
perceives the result of a strict interpretation of the law
as just or unjust in this particular instance, it may not
depart from its statutory authority in attempting to
expand its jurisdiction. Such a departure as evidenced in
this matter requires intervention and supervision of this
Court to avoid incongruous and absurd results in the
future.
20
Conclusion
The instant case presents an application of statutory,
NLRB and appeliate court law to a series of facts which
are not in dispute. There is no question that the
petition for representation was filed at a time when a
valid collective bargaining agreement existed between a
union and an employer, which operated as a total and
complete bar to that petition. Moveover, the entity
alleged to be an employer in that petition was not within
the Act's definition of ‘“‘employer” at the time of the
filing. Neither did that entity have any employees within
the requested bargaining unit. The sole logical conclusion
is that this petition was wholly invalid and should not
have been processed by the NLRB. The certification of
representative is unlawful and the finding of an unfair
labor practice is totally without factual or legal support.
However, the impact and importance of this order of
the Board reaches far beyond the parties and the facts of
the instant case before this Honorable Court.
Enforcement of the NLRB order will have severe
repercussions against a pre-existing union’s right to
continued representation of employees of a successor, the
sanctity of collective bargaining agreements, the
employer’s financial and operational abilities based upon
stability and employee relations, employees’ confidence
in the collective bargaining and representation process,
stability in relationships between unions, employees and
employers, and finality and uniformity of application of
established Board policies and precedent.
This is not merely a simple case of a union missing a
filing deadline. The decision goes to the very heart of
orderly employer-employee relations and _ proper
procedure within’ statutory confines before’ the
administrative agency responsible for enforcing the
rights of all parties to that relationship.
21
For the foregoing reasons, LEEBRO Management,
Inc., respectfully requests an opportunity for this Court
to hear and rule upon these crucial Federal Labor Law
issues. The fundamental nature of the questions
presented and their disrupting impact as well as the
conflict among the Circuit Courts is ample justification
for this Honorable Court to review this decision.
It is respectfully urged that this Court issue a Writ of
Certiorari to the Court of Appeals for the Third Circuit
in order to review this matter upon the merits.
Respectfully submitted,
TUCKER ARENSBERG, P.C.
HENRY W. EWALT
Attorneys for Petitioner
la
APPENDIX
Judgment Order of the United States Court
of Appeals for the Third Circuit,
dated August 6, 1985
UNITED STATES COURT OF APPEALS
For the Third Circuit
No. 84-3734
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
VS.
LEEBRO MANAGEMENT, INC., d/b/a
SAMSON BUICK, INC.,
Respondent.
On Application for Enforcement of a Decision and
Order of the National Labor Relations Board
Board No. 6-CA-17106
Argued: Friday, July 19, 1985
Before: SEITZ, HIGGINBOTHAM and SLOVITER,
Circuit Judges
2a
Appendix—Judgment Order of the United States
Court of Appeals for the Third Circuit,
dated August 6. 1985.
JUDGMENT ORDER
After consideration of all contentions raised by
petitioner, it is
ADJUDGED, ORDERED and DECREED that the
order of the National Labor Relations Board be enforced
in full.
Each party to bear own costs.
BY THE COURT.
A. LEON HIGGINBOTHAM
Circuit Judge
Attest:
Sally Mrvos, Clerk
DATED: AUG 6 1985
Certified as a true copy and reissued in lieu
of a formal mandate on September 20, 1985.
Test: N. Elizabeth Ferguson
Chief Deputy Clerk,
U.S. Court of Appeals for the Third Circuit
COPY
3a
Order Denying Petition for Rehearing,
United States Court of Appeals for the
Third Circuit, dated September 12, 1985
UNITED STATES COURT OF APPEALS
For the Third Circuit
No. 84-3734
NATIONAL LABOR RELATIONS BOARD,
Petitioner.
vs.
LEEBRO MANAGEMENT, INC., d/b/a
SAMSON BUICK, INC..
Respondent.
SUR PETITION FOR REHEARING
Before: ALDISERT, Chief Judge, SEITZ, ADAMS,
GIBBONS, HUNTER, WEIS, GARTH,
HIGGINBOTHAM, SLOVITER, BECKER,
STAPLETON, MANSMANN, Circuit Judges.
The petition for rehearing filed by Leebro
Management, Inc., Respondent in the above-entitled case
having been submitted to the judges who participated in
the decision of this court and to all the other available
circuit judges of the circuit in regular active service, and
no judge who concurred in the decision having asked for
da
Appendix— Order Denying Petition for Rehearing,
United States Court of Appeais for the Third
Circuit, dated September 12, 1985.
rehearing, and a majority of the circuit judges of the
circuit in regular active service not having voted for
rehearing by the court in banc, the petition for rehearing
is denied.
BY THE COURT,
A. LEON HIGGINBOTHAM
Circuit Judge
Dated: SEP 12 1985
va
Decision and Order of the National Labor
Relations Board in Case 6-CA-17106,
dated July 23, 1984
DZH
271 NLRB No. 63 D-1970
Pittsburgh, PA
UNITED STATES OF AMERICA
Before the National Labor Relations Board
LEEBRO MANAGEMENT, INC. d/b/a
SAMSON BUICK, INC.,
and
INTERNATIONAL UNION, UNITED AUTOMOBILE,
AEROSPACE AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA (UAW).
Case 6-CA-17106
DECISION AND ORDER
Upon a charge filed by the Union 10 February 1984,
the General Counsel of the National Labor Relations
Board issued a complaint 23 February 1984 against the
Company, the Respondent, alleging that it has violated
Section 8(a)(5) and (1) of the National Labor Relations
Act.
The complaint alleges that on 9 December 1983,
following a Board election in Case 6-RC-9401, the Union
was certified as the exclusive collective bargaining
representative of the Company’s employees in the unit
found appropriate. (Official notice is taken of the
iia
ba
Appendix—Decision and Order of the Natiozal
Labor Relations Board in Case 6-CA-17106,
dated July 23, 1984.
‘record’ in the representation proceeding as defined in
the Board’s Rules and Regulations, Secs. 102.68 and
102.69(g). amended Sept. 9, 1981, 46 Fed.Reg. 45922
(1981); Frontier Hotel, 265 NLRB 343 (Nov. 9, 1982).)
The complaint further alleges that since 8 February 1984
the Company has refused to bargain with the Union. On
29 February 1984 the Company filed its answer
admitting in part and denying in part the allegations in
the complaint.
On 5 March 1984 the General Counsel filed a Motion
for Summary Judgment. On 7 March 1984 the Board
issued an order transferring the proceeding to the Board
and a Notice to Show Cause why the motion should not
be granted.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
In its answer to the complaint, the Company contests
the validity of the Union’s certification, contending that
the certification was not in accordance with the Act, the
Board’s Rules and Regulations, or Board and court
precedent. The General Counsel argues that the
Company is attempting to relitigate issues which it
raised or could have raised in Case 6-RC-9401, that the
Company does not contend that it has any newly
discovered or previously unavailable evidence, and that
there are no issues of fact or law requiring a hearing. We
agree with the General Counsel.
fa
Appendix—Decision and Order of the National
Labor Relations Board in Case 6-CA-17106,
dated July 23, 1984.
Our review of the record herein, including the record in
Case 6-RC-9401, discloses that the Union filed a
representation petition 31 August 1983. On 25 October
1983 the Acting Regional Director for Region 6 issued a
Decision and Direction of Election, finding that a
collective-bargaining agreement between the Company's
predecessor and the Associated Trades and Crafts Union
did not bar the petition. On 7 November 1983 the
Company filed with the Board a request for review of the
Acting Regional Director's decision. The Company
primarily contended that the petition was untimely filed
and that the existing collective-bargaining agreement
barred the petition. On 28 November 1983 the Board
denied the Company's request for review. The Union won
the 30 November 1983 election and was certified as the
unit employees’ bargaining representative 9 December
1983.
It is well settled that in the absence of newly
discovered and 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 that were or could have been litigated in a prior
representation proceeding. See Pittsburgh Glass Co. v.
NLRB, 313 U.S. 146, 162 (1941); Secs. 102.67(f) and
102.69(c) of the Board's Rules and Regulations.
All issves raised by the Company were or could have
been litigated in the prior representation proceeding. The
Company does not offer to adduce at a hearing any
newly discovered and previously unavailable evidence,
nor does it allege any special circumstances that would
require the Board to reexamine the decision made in the
representation proceeding. We therefore find that the
SS
Sa
Appendix—Decision and Order of the National
Labor Reiations Board in Case 6-CA-17106,
dated July 23, 1984.
Company has not raised any issue that is properly
litigable in this unfair labor practice proceeding.
Accordingly we grant the Motion for Summary Judgment.
On the entire record, the Board makes the following
Findings of Fact
I. Jurisdiction
The Company, a Pennsylvania corporation, is engaged
in the retail sale and servicing of automobiles at its
facility in Pittsburgh, Pennsylvania, where it annually
derives gross revenues in excess of $500,000 and
purchases and receives goods and materials valued in
excess of $5,000 directly from points outside the
Commonwealth of Pennsylvania. We find that the
Company is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that the
Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. The Certification
Following the election held 30 November 1983 the
Union was certified 9 December 1983 as the collective-
bargaining representative of the employees in the
following appropriate unit:
All service department employees, including new car
prep mechanics, new car checkers, used car lot and
clean up employees, used car and customer air
conditioner employees, used car conditioners, car
jockeys, clean up and janitorial employees, customer
service write up employees, mechanic helpers, driver
Ya
Appendix—Decision and Order of the National
Labor Relations Board in Case 6-CA-17106.
dated July 23, 1984.
parts counterpersons, mechanics, polishers,
rustproofers, body mechanics, mechanic apprentices,
lubricators and technician trainees, emploved by the
Employer at its Pittsburgh, Pennsylvania, facility:
excluding office clerical employees, salespersons and
guards, professional employees and supervisors as
defined in the Act.
The Union continues to be the exclusive representative
under Section 9a) of the Act.
B. Refusal to Bargain
Since 7 February 1984 the Union has requested the
Company to bargain, and since 8 February 1984 the
Company has refused. We find that this refusal
constitutes an unlawful refusal to bargain in violation of
Section 8(a)(5) and (1) of the Act.
Conclusions of Law
By refusing on and after 8 February 1984 to bargain
with the Union as the exclusive collective-bargaining
representative of employees in the appropriate unit, the
Company has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(5) and (1}
and Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has violated
Section 8(a)5) and (1) of the Act, we shall order it to
cease and desist, to bargain on request with the Union
and, if any understanding is reached, to embody the
understanding in a signed agreement.
10a
Appendix—Decision and Order of the National
Labor Relations Board in Case 6-CA-17106,
dated July 23, 1984.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by law. we shall construe the initial period of the
certification as beginning the date the Respondent
begins to bargain in good faith with the Union. Mar-Jac
Poultry Co., 1386 NLRB 785 (1962); Lamar Hotel, 140
NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir.
1964), cert. denied 279 U.S. 817 (1964); Burnett
Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350
F.2d 57 (10th Cir. 1965).
ORDER
The National Labor Reiations Board orders that the
Respondent, Leebro Management, Inc. d/b/a Samson
Buick, Inc., Pittsburgh, Pennsylvania, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with International Union,
United Automobile, Aerospace and Agricultural Implement
Workers of America (UAW), as the exclusive bargaining
representative of the employees in the bargaining unit.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
{aj On request, bargain with the Union as _ the
exclusive representative of the employees in the
following appropriate unit on terms and conditions of
lla
Appendix —Decision and Order of the National
Labor Relations Board in Case 6-CA-17106,
dated July 23, 1984.
employment and, if an understanding is reached, embody
the understanding in a signed agreement:
All service department employees, including new car
prep mechanics, new car checkers, used car lot and
clean up employees, used car and customer air
conditioner employees, used car conditioners, car
jockeys, clean up and janitorial employees, customer
service write up employees, mechanic helpers, driver
parts counterpersons, mechanics, polishers,
rustproofers, body mechanics, mechanic apprentices,
lubricators and technician trainees, employed by the
Employer at its Pittsburgh, Pennsylvania, facility:
excluding office clerical employees, salespersons and
guards, professional employees and supervisors as
defined in the Act.
(b) Post at its facility in Pittsburgh, Pennsylvania,
copies of the attached notice marked ‘‘Appendix.’”
Copies of the notice, on forms provided by the Regional
Director for Region 6, after being signed by the
Respondent's authorized representative, shall be posted
by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
‘If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading ‘POSTED BY ORDER OF
THE 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.”
12a
Appendix—Decision and Order of the National
Labor Relations Board in Case 6-CA-17106,
dated July 23, 1984.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the
Respondent has taken to comply.
Dated, Washington, D.C. 23 July 1984.
DONALD L. DOTSON, Chairman
DON A. ZIMMERMAN, Member
ROBERT P. HUNTER, Member
(Seal) NATIONAL LABOR RELATIONS BOARD
13a
Appendix—Decision and Order of the National
Labor Relations Board in Case 6-CA-17106.
dated July 23, 1984.
D-1970
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has
ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with International
Union, United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), as the exclusive
representative of the employees in the bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and put
in writing and sign any agreement reached on terms and
conditions of employment for our employees in the
bargaining unit:
All service department employees, including new car
prep mechanics, new car checkers, used car lot and
clean up employees, used car and customer air
conditioner employees, used car conditioners, car
jockeys, clean up and janitorial employees, customer
service write up employees, mechanic helpers, driver
l4da
Appendix—Decision and Order of the National
Labor Relations Board in Case 6CA-17106,
dated July 23, 1984.
parts counterpersons, mechanics, polishers,
rustproofers, body mechanics, mechanic apprenticcs,
lubricators and technician trainees, employed by the
Employer at its Pittsburgh, Pennsylvania, facility;
excluding office clerical empioyees, salespersons and
guards, professional employees and supervisors as
defined in the Act.
LEEBRO MANAGEMENT, INC.
d/b/a SAMSON BUICK, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material. Any questions
concerning this notice or compliance with its provisions
may be directed to the Board’s Office, 1501 William S.
Moorehead Federal Building, 1000 Liberty Avenue,
Pittsburgh, Pennsylvania 15222, Telephone 412-644-2969.
l5a
Decision and Direction of Election of the Acting
Regional Director, Region 6, National Labor
Relations Board, dated October 25, 1983
UNITED STATES OF AMERICA
Before the National Labor Reiations Board
Region Six
Case 6-RC-9401
LEEBRO MANAGEMENT, INC. d/b/a
SAMSON BUICK CO..,'
and
INTERNATIONAL UNION, UNITED AUTOMOBILE,
AEROSPACE AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, AFL-CIO.
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, a hearing was held before
Thomas Stefanac, a hearing officer of the National Labor
Relations Board.
Pursuant to the provisions of Section 3(b) of the Act,
the Board has delegated its powers in connection with
this case to the undersigned Acting Regiona! Director.’
‘ The name of the Employer appears as amended at the hearing.
* Under the provisions of Section 102.67 of the Board’s Rules and
Regulations, a request for review of this decision may be filed with
the National Labor Relations Board, addressed to the Executive
Secretary, 1717 Pennsylvania Avenue, N.W., Washington, DC 20570.
This request must be received by the Board in Washington by
November 7, 1983.
l6a
Appendix—Decision and Direction of Election of the
Acting Regional Director, Region 6, National Labor
Relations Board, dated October 25, 198.3.
Upon the entire record in this case,’ the Regional
Director finds:
1. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.
2. The Employer is engaged in commerce within the
meaning of the Act and it will effectuate the purposes of
the Act to assert jurisdiction herein.
3. The labor organizations involved claim to represent
certain employees of the Employer.‘
4. The Petitioner seeks to represent a unit of all
service department employees, including new car prep
mechanics, new car checkers, used car lot and clean up
employees, used car and customer air conditioner
employees, used car conditioners, car jockeys, clean up
and janitorial employees, customer service write up
employees, mechanic helpers, drivers, parts counter
persons, mechanics, polishers, rustproofers, body
mechanics, mechanic apprentices, lubricators and
technician trainees employed by the Employer at its
Pittsburgh, Pennsylvania location; excluding office
clerical employees, sales persons, and _ guards,
professional employees, and supervisors as defined in the
* The Employer timely filed a brief which has been duly considered by
the undersigned. In addition, the Employer filed, prior to the hearing,
a Motion to Dismiss the instant petition and a Brief in Support of
said Motion, which were admitted into the record as Board’s Exhibit
2. The Employer's Motion will be discussed infra.
‘The Associated Trades and Crafts Union (hereinafter Intervenor)
was permitted to intervene on the basis of its contract with the
Employer.
l7a
Appendix—Decision and Direction of Election of the
Acting Regional Director, Region 6, Nationai Labor
Relations Board, dated October 25, 1983.
Act and all other employees. While in agreement as to
the appropriateness and scope of the petitioned-for unit,
the Employer and the Intervenor assert that their
collective bargaining agreement bars an election.
On December 19, 1974, the Intervenor was certified in
Case 6-RC-6983 as_ the collective-bargaining
representative of certain employees of Samson Buick
Company (hereinafter Samson Buick). the predecessor of
the Employer in a unit of mechanics, apprentice
mechanics and body men. The Intervenor was thereafter
party to successive collective-bargaining agreements
with Samson Buick. Following certification, the
Employer and Intervenor agreed to exclude the body
men from the unit and this agreement was thereafter
noted in the subsequent collective bargaining agreement.
The last such collective-bargaining agreement was
effective, by its terms, from March 31, 1981, to March
31, 1983. At the conclusion of the contract term, the
collective bargaining agreement was automatically
renewed for a one-year period or.until March 31, 1984,
consonant with the provisions of the agreement. The
Employer contends that this agreement was in effect at
the time of the filing of the instant petition on August
31, 1983, and that, therefore, the agreement acts as a bar
to the petition. The Employer further contends that as of
August 31, 1983, when the petition was filed, it had no
employees and was not an employer and that, therefore,
the petition was prematurely filed. On these bases, the
Employer moves for the dismissal of the petition. The
Intervenor is in agreement with the Emplover.
18a
Appendix—Decision and Direction of Election of the
Acting Regional Director, Region 6, National Labor
Relations Board, dated October 25, 1983.
The Employer, a Pennsylvania corporation with its
principal effice located in Pittsburgh, Pennsylvania, is
engaged in the retail sale of new and used automobiles
and the service of automobiles. These business
operations commenced on September 1, 1983.°
On May 27, 1983, the Employer executed a purchase
agreement with Samson Buick, which was contingent
upon the Employer being granted a franchise of the
Buick Motor Division and which sale was to be effective
September 1, 1983. Between approximately August 10
and August 15, 1983, the Employer received approvai of
its franchise application and also received necessary
financing commitments. The closing on the purchase
agreement took place on August 29 and 30, 1983, with
an effective date of the Employer’s assumption of
Samson Buick’s business of September 1, 1983.
The Employer commenced its operations on September
1, 1983, with all the same employees and supervision as
Samson Buick. There is no common ownership between
Samson Buick and the Employer. Prior to September 1,
1983, the shareholders of the Employer, including John
E. Lee, Jr., who is the chief operating officer of the
Employer, had no ownership in Samson Buick and had
no control of the employees and supervisors of Samson
Buick.
On August 25, 1983, Lee sent a letter to Thomas
Farrington, business agent of the Intervenor, in which he
informed Farrington of the Employer’s purchase of the
* All parties stipulated that based on a projection of its operations for
the 12-month period beginning September 1, 1983, the Employer
would satisfy the Board's standards for the assertion of jurisdiction.
19a
Appendix—Decision and Direction of Election of the
Acting Regional Director, Region 6, National Labor
Relations Board, dated October 25, 1983.
assets of Samson Buick and in which he requested that
Farrington call Lee subsequent to September i. 1983, to
arrange a meeting. Subsequent to September 1, 1983, the
Employer and Intervenor unsuccessfully attempted to
schedule a meeting. The Employer then sent a telegram
to the Intervenor on September 7, 1983, in which it
agreed to continue to abide by the terms and conditions
of the collective-bargaining agreement which was
in existence between the Intervenor and Samson Buick.
By letter dated September 9, 1983, Farrington
informed Lee that the Intervenor also intended to abide
by all the terms and conditions of the collective-
bargaining agreement between the Intervenor and
Samson Buick. On September 13, 1983, the Intervenor
and the Employer executed an ‘Agreement’ in which
they agreed to assume and adopt the aforementioned
collective-bargaining agreement, until March 31, 1984.
Since September 1, 1983, the Employer has continued all
terms and conditions of employment contained in said
collective-bargaining agreement.
Based upon the above and the record as a whole, I find
that the Intervenor’s contract is not a bar to the instant
petition. In reaching this conclusion, I note that it is
well-settled that a successor employer is not bound by
the collective-bargaining agreement of the predecessor
employer. N.L.R.B. v. Burns International Security
Services, Inc., 404 U.S. 822 (1972). Furthermore, the
assumption of operations by a purchaser in good faith,
which has not bound itself to assume the predecessor's
contract, removes the contract as a bar to a petition.
General Extrusion Company, Inc., 121 NLRB 1165
(1958). Indeed, even when a successor has informed the
20a
Appendix—Decision and Direction of Election of the
Acting Regional Director, Region 6, National Labor
Relations Board, dated October 25, 1983.
predecessor employer of its intention to continue the
contract and even where the successor has continued to
abide by the terms and conditions of the predecessor's
contract, there can be no contract bar until an agreement
is reached in writing. Great Atlantic & Pacific Tea
Company, 197 NLRB 922 (1972); Joseph Madruga et al.,
d/b/a Dominator, 162 NLRB 1514 (1967). Inasmuch as
the Employer herein did not enter into any written
agreement with the Intervenor until September 13, 1982,
and inasmuch as there is no evidence of any other
expressed written adoption of the contract in question by
the Employer, I do not find that the agreement between
the Employer and Intervenor constitutes a contract bar.
There remains for consideration the contention that the
instant petition was prematurely filed inasmuch as the
Employer did not begin operations until one day after
the filing of the petition herein. As previously noted, the
contract between Samson Buick and the Intervenor was
in effect on August 31, 1983, the date the petition was
filed herein. Also, the Employer did not physically and
formally begin its actual business operations until
September 1, 1983, and, therefore, the petition was filed
at a time when the predecessor was still in existence and
at a time when the Employer had not physically taken
over the predecessor's operations. In the circumstances
of this case, however, I do not find it appropriate to
elevate, in effect, form over substance and dismiss the
petition on these bases. In this regard, I note that the
purchase agreement was executed in May 1983, that the
closing on the sales agreement between the predecessor
and the Employer occurred on August 29 and 30, 1983,
and that the Petitioner could not be expected to know
Pla
Appendix—Decision and Direction of Election of the
Acting Regional Director, Region 6, National Labor
Relations Board, dated October 25, 1983.
the precise time that the sales agreement would take
effect. I further note that the Employer hired all the
employees and supervisors of the predecessor. In these
circumstances, I do not find that it would effectuate the
policies of the Act to dismiss the petition herein.
Inasmuch as I have concluded that the Intervenor's
contract does not constitute a bar and that the petition
was properly and timely filed with respect to this
Employer, I shall deny the Employer's Motion to
Dismiss.
Accordingly, in accordance with the parties’ stipulation
that the petitioned-for unit is appropriate® and the
Intervenor’s stated desire to participate in an election in
the petitioned-for unit I find that the following
employees of the Employer constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All service department employees, including new car
prep mechanics, new car checkers, used car lot and
clean up employees, used car and customer air
conditioner employees, used car conditioners, car
jockeys, clean up and janitorial employees, customer
service write up employees, mechanic helpers, driver
parts counterpersons, mechanics, polishers,
rustproofers, body mechanics, mechanic apprentices,
lubricators and technician trainees, employed by the
Employer at its Pittsburgh, Pennsylvania, facility;
excluding office clerical employees, salespersons and
guards, professional employees and supervisors as
defined in the Act and al: other employees.
* In this regard, I note that the Board has an established practice of
finding all employees of an automobile service department to be an
appropriate unit. See, e.g. Gregory Chevrolet, Inc., 258 NLRB 233
(1981).
22a
Appendix—Decision and Direction of Election of the
Acting Regional Director, Region 6, Nativnal Labor
Relations Board, dated October 25, 1983.
DIRECTION OF ELECTION
An election by secret ballot will be conducted by the
undersigned Acting Regional Director among the
employees in the unit set forth, at the time and place set
forth in the notice of election be issued subsequently,
subject to the Board’s Rules and Regulations. Eligible to
vote are those in the unit who were employed during the
payroll period immediately preceding the date below,
including employees who did not work during that period
because they were ill, on vacation or temporarily laid off.
Also eligible are employees engaged in an economic
strike which commenced iess than 12 months before the
election date and who retained their status as such
during the eligibility period and their replacements.
Those in the military services of the United States may
vote if they appear in person at the polls. Ineligible to
vote are employees who have quit or been discharged for
cause since the designated payroll period and employees
engaged in a strike who have been discharged for cause
since the commencement thereof, and who have not beer
rehired or reinstated before the election date, and
employees engaged in an economic strike which
commenced more than 12 months before the election date
and who have beer permanently replaced.’ Those eligible
* In order to assure that all eligible voters may have the opportunity
to be informed of the issues in the exercise of their statutory right to
vote, all parties to the election should have access to a list of voters
and their addresses, which may be used to communicate with them.
Excelsior Underwear, Inc. 156 NLRB 1236 (1966); N.LA.B. v.
Wyman-Gordon Company, 394 U.S. 759 (1969). Accordingly, it is
hereby directed that an election eligibility list, containing the names
(Footnote continued on following page)
23a
Appendix—Decision and Direction of Election of the
Acting Regional Director, Region 6, National Labor
Relations Board, dated October 25, 1983.
shall vote whether or not they desire to be represented
for collective bargaining by International Union, United
Automobile, Aerospace and Agricultural Implement
Workers of America (UAW); or Associated Trades &
Crafts Union; or Neither.
Dated at Pittsburgh, Pennsylvania, this 25th day of
October 1983.
JOHN W. HOSTLER
JOHN W. HOSTLER
Acting Regional Director, Region Six
NATIONAL LABOR RELATIONS BOARD
1501 William S. Moorhead \ederal Bldg.
1000 Liberty Avenue
Pittsburgh, Pennsylvania 15222
(Footnote continued from preceding page)
and addresses of all eligible voters, must be filed by the Employer
with the Regional Director within seven (7) days of the date of this
Decision and Direction of Election. The Regional Director shall make
the list available to all parties to the election. In order to be timely
filed, such list must be received in the Regional office, 1501 William
S. Moorhead Federal Building, 1000 Liberty Avenue, Pittsburgh,
Pennsylvania 15222 on or before November i, 1983. No extension of
time to file this list may be granted, except in extraordinary
circumstances, nor shall the filing of a request for review operate to
stay the requirement here imposed.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.