NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
Consolidated Equities Realty #3, LLC d/b/a Bob
Townsend/Colerain Ford and District
Lodge 34, International Association of Machinists and Aerospace Workers,
AFL–CIO.
Cases 9–CA–42545, 9–CA–42709, 9–CA–42710, and 9–CA–42921
November 29, 2007
DECISION AND ORDER
By Chairman Battista and Members Liebman
and Walsh
On March 26, 2007, Administrative Law Judge George Carson II issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Respondent filed a reply brief.
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in light of the exceptions1 and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions and to adopt the recommended Order as modified.3
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge as modified below and orders that the
Respondent, Consolidated Equities Realty #3, LLC d/b/a Bob Townsend/Colerain
Ford,
Substitute the following for paragraph 2(b).
“(b) Make Stanley Walton, Harold Thornton, Samuel Dishun and the Estate of Kevin Botkins whole for any loss of earnings and other benefits suffered as a result of the unlawful action taken against them, in the manner set forth in the remedy section of the decision.”
Dated,
______________________________________
Robert J. Battista, Chairman
______________________________________
Wilma B. Liebman, Member
______________________________________
Dennis P. Walsh, Member
(seal) National
Labor Relations Board
David L. Ness, Esq., for the General Counsel.
James F. Hendricks Jr. and Michael P. MacHarg (on Brief), Esqs., for the Respondent.
David L. Porter, for the Charging Party.
DECISION
Statement of the Case
George Carson
II, Administrative Law Judge. This case was tried in
On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel and the Respondent, I make the following
Findings of Fact
i.
jurisdiction
The Respondent, Consolidated Equities Realty #3, LLC d/b/a
Bob Townsend/Colerain Ford, the Company, is a corporation engaged in the retail
sale and service of automobiles at its facilities on
The Respondent admits, and I find and conclude, that District
Lodge 34, International Association of Machinists and Aerospace Workers, AFL–CIO,
the
ii. alleged
unfair labor practices
A. Background
Bob Townsend Ford operated as an automobile dealership on
Union activity among the employees began shortly after the
Company purchased what had formerly operated as Bob Townsend Ford. Representation petitions were filed and, in
November, elections were held in three separate units. On November 8, a representation election was
held in the automotive technicians unit, and on November 16, the
The alleged threat that the Respondent would never sign a collective-bargaining agreement purportedly occurred before the elections. The remaining allegations relate to conduct that occurred after the elections. The layoffs occurred in late November, and the discharge occurred on December 29.
B. The 8(a)(1) Allegation
The complaint alleges that President Jang threatened employees
with the futility of organizing by stating that the Company would never sign a
contract with the
Automotive technician Gary Shuler recalled attending three meetings at which Frank spoke. He initially testified that Jang was present for some period of time at all of these meetings, but, on cross-examination, admitted that he could not “say for sure” whether she was present for the first meeting. He recalled that Frank spoke about how the employees did not need a union but recalled nothing specific that Frank said at any of the meetings. At the last meeting, which he placed as occurring about a week before the election but the date of which he could not recall, Shuler recalled that Jang stated that she felt that employees had “disrespected her,” that she would spend “every dime” to keep the Union out, and that, if the Union was voted in, that she, “by law,” would have to “go meet,” but that she “did not have to speak, negotiate a contract, or sign a contract.”
Stanley Walton, in his initial testimony, recalled only
that Jang said that she would spend “every dollar” to keep the
Jang acknowledged speaking to employees prior to the elections,
but she denied making any statement relating to not signing a contract. She recalls that, following the elections in
which the employees in the three separate units selected the
No employee disputed Jang’s testimony that she spoke about
the Company’s bargaining obligation after the election. Both Shuler and Walton heard Jang make some
statement that they interpreted and from which Walton concluded that the
C. The 8(a)(3) Allegation
The complaint alleges that Stanley Walton was laid off because
of his union activities in violation of Section 8(a)(3) of the Act. Walton served as an observer for the
The General Counsel argues that animus is established by
Jang’s statement that she would never sign a contract with the
D. The 8(a)(5) Allegations
1. Facts
When the Company took over the Bob Townsend dealership,
there was no hiatus. After commencing
operations, Jang, whose background is in accounting, realized that the parts
and service operations of the dealership, referred to as the fixed operations,
were not profitable. She testified that
she and her partners “focused on . . . [the] overstaffing of the departments.”
Asked whether she “took any steps during the first two months of operations,
mainly September and October, to cut the costs of fixed operations,” Jang
answered “No, I didn’t, but I wanted to.” Asked why she took no steps, Jang explained
that she was told by “our consultant” who was speaking to the employees
regarding unionization that she could not “do any kind of layoffs or anything
to try to cut back on our expenses because . . . I would be charged with unfair
labor practices. So I would have to wait
until after the election.” It does not
appear that the consultant gave any advice or direction to her regarding the Company’s
obligations in the event that the employees selected the
Asked whether “after the election, did you take any steps to cut costs at your dealership,” Jang answered that she did, that “the main thing we wanted to do was look at the work and decide who would be the best as far as the layoffs are concerned. We had decided at that time that the best thing to do would be to cut one team out of the service department.” [Emphasis added.]
Jang admitted that she gave no notice or opportunity to bargain
to the
On November 22, parts department employee Kevin Botkins was laid off. Jang explained that the parts department had five employees, two at the front desk who dealt with retail customers, and three at the back desk who provided parts to the automotive technicians who repaired vehicles in the service department. Having made the decision to lay off a team in the service department, Jang determined that three employees at the back desk were unnecessary and laid off Botkins.
Service writer Harold Thornton was aware that business was slow. He anticipated that the slow business could lead to layoffs. He was aware that, of the four service writers, he was the most financially secure. He spoke with Service Manager John Collins in mid-October, stating that he could feel “a change happening.” He then told Collins that, if the Company was “going to lay anyone off, please consider me.” He then explained to Collins that he felt he was better able “financially to survive” due to the family commitments of the other service writers.
On November 30, 2 days after the certification of the
On December 1, Union Business Representative Steven Graham wrote Jang, stating that it had been brought to his attention that the Company had laid off bargaining unit members and advising her that “layoffs are a mandatory subject of bargaining.” The letter then states, “The Union demands that you reinstate any and all represented members immediately with back pay.”
On December 12, counsel for the Company responded. The response does not address the request for
reinstatement and backpay, nor does it assert that that the layoff decisions
were made prior to the
In October, prior to the elections, the Company distributed an employee handbook that addressed various matters including absenteeism, tardiness, and discipline. In pertinent part the handbook provides that “each employee is expected to be at work on time each day. Excessive absenteeism or tardiness can result in discipline, up to and including discharge.”
Although the employee handbook does not prescribe a progressive discipline system, documentary evidence, a suspension issued to automotive technician Glenn Gillette in January 2006 after he was absent on a Thursday with no call in and on the following day with a call in after noon, establishes that discipline more severe than a warning but less severe than discharge occurs. Jang admitted, and the foregoing suspension confirms, that the level of discipline given by managers is discretionary.
Samuel Dishun began working in the parts department of the predecessor in 1992. He continued to work in the parts department after the Company took over the dealership on September 1. It is undisputed that, prior to December 28, Dishun had never been disciplined, and it is also undisputed that the Company had not disciplined any employee for tardiness.
A stipulation by the parties reflects 62 instances of tardiness by employees in the parts department from September through December. In November, after the distribution of the handbook, employee Botkins, who was laid off on November 22, was never tardy. Employee Andrew Edwards, who was not laid off, was tardy five times, and employee Dishun, who was not laid off, was tardy seven times.
In December, employee Edwards was tardy 3 times and employee Dishun was tardy 15 times. The record does not reflect whether the tardies were for only a minute or two or for longer periods of time. President Jang testified that discipline was not triggered by a specific number of tardies, that it was within the discretion of the manager. Bill Collins became manager of the parts department in late November or early December. Jang did not recall the date he was hired. She acknowledged that he consulted with her before issuing a warning to Dishun on December 28 because he was a new manager.
On the evening of December 28, Parts Manager Bill Collins
called Dishun to his office and presented him with a written warning stating
that “[T]ardiness from Sam Dishun is not acceptable and he will be expected to
be at work by the scheduled time of 9:00 am everyday [sic] effective immediately.”
Dishun noted that there was a
discrepancy between the timeclock and the wall clock. Collins replied that he would “straighten that
out tomorrow.” There is no evidence that
Dishun had been tardy on December 28. It
is undisputed that no notice was given to the
On Thursday, December 29, Dishun arrived at work prior to
9 a.m., but, before clocking in, turned in his dirty uniforms, which he did
every Thursday. As he approached the
timeclock, he observed Parts Manager Collins at the timeclock. The wall clock showed the time as three
minutes past 9 a.m. Whether the
timeclock was synchronized with the wall clock will never be known because
Collins did not permit Dishun to punch the timeclock. He discharged him, stating that he “just gave
you a written warning last night” and that he was 3 minutes late. Dishun explained that he had “stopped to drop
off my uniforms at the locker room.” Collins
told him, “Well, we’re done.” No notice
was given to the
Negotiations for collective-bargaining agreements covering the three units began in March 2006, and concluded in November 2006. The current agreements, effective November 22, 2006, contain virtually identical general language but differing provisions specific to the units regarding wages. All three agreements contain the following article XXIII, definition of agreement, commonly referred to as a zipper clause:
It is agreed that during the negotiations leading to the execution of this Agreement, the Union has had full opportunity to submit all items appropriate for collective bargaining; that the Union expressly waives the right to submit any additional items for negotiation during the term of this Agreement irrespective of whether the item was or was not discussed during the course of negotiations . . . and that this Agreement incorporates the full and complete understanding between the parties . . ., all previously existing rights not specifically incorporated herein are hereby terminated.
Union Representative David Porter’s uncontradicted testimony establishes that there was no discussion relating to the effect of the foregoing paragraph in regard to the outstanding complaint in this case, which had issued on August 23, 2006.
2. Analysis and concluding findings
The vice in failing to bargain regarding layoff decisions
and discharge decisions is “the injury to the union’s status as bargaining representative.”
Great
Western Produce, 299 NLRB 1004, 1005 (1990). That injury was
demonstrated at Bob Townsend/Colerain Ford when the Respondent, without notice
to or consultation with the newly selected collective bargaining representative
of the employees, began unilaterally laying off employees and discharging them.
It is undisputed that the Respondent
gave no notice or opportunity to bargain to the
a. The layoffs
The Respondent, in its brief, citing various cases
including Starcraft Aerospace, Inc.,
346 NLRB No. 104 (2006), and Consolidated
Printers, 305 NLRB 1061, 1067 (1992), correctly states that an employer is
not obligated to bargain before carrying out a decision made prior to a union
demonstrating majority support even though the decision is effectuated after
the bargaining obligation attaches. The
Respondent argues that “the unrebutted record testimony in this case proves
that the Respondent made the decision to lay off employees prior to the
Jang did not claim that she had made a decision to “do layoffs or anything” at the time she received that advice from the consultant. Consistent with that advice, she did nothing. She waited until after the election to address the problem. Although Jang and her partners were concerned about overstaffing, Jang and her partners made no decision. When asked whether she took any steps to cut costs in September and October, Jang testified, “No, I didn’t, but I wanted to.” Jang did not testify what she “wanted” to do. Regardless of what she wanted to do, wanting to do something does not constitute deciding to do something. When asked whether, “after the election,” she took any steps to cut costs, Jang answered that “we,” referring to herself and her partners, wanted to “look at the work and decide who would be the best as far as the layoffs are concerned. We had decided at that time that the best thing to do would be to cut one team out of the service department.” [Emphasis added.] The Respondent’s brief does not cite the foregoing testimony.
In Starcraft
Aerospace, Inc., supra, slip op. at 2 and 6, the Board determined that the
layoff decision therein was made prior to December 8 and discussed by
management on December 8, 3 days prior to a representation election scheduled
for December 11. In that discussion,
counsel cautioned that, if the decision was implemented prior to the election,
it could be perceived as an unfair labor practice. In this case, there is no evidence that any
decision was made prior to the election in the automotive technicians union,
which occurred on November 8, or the November 18 elections in the service writers
and parts department units. Jang did not
at any time claim that the layoffs were implemented pursuant to a decision made
prior to the elections in which the
President Jang admitted that the layoffs occurred in order to reduce labor costs. Thus, the decision falls under the second category of management decisions enumerated in First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981), that are “almost exclusively ‘an aspect of the relationship’ between employer and employee” and are mandatory subjects of bargaining. Kajima Engineering & Construction, 331 NLRB 1604, 1620 (2000). Thus, in this case as in Kajima Engineering & Construction, “it is unnecessary to engage in the Dubuque Packing Co. [303 NLRB 386 (1991)] . . . type of multistep analysis regarding subjects falling within this category . . . [because] the lack of available work layoff decisions here constituted mandatory subjects of bargaining. Winchell Co., 315 NLRB 526 fn. 2 (1994); Westinghouse Electric Corp., 313 NLRB 452, 453 (1993); Holmes & Narver, [309 NLRB 146 (1992)] . . . at 147.” Ibid.
Even when an employer has a past policy of laying off employees
when business is slow, after a bargaining obligation exists it is not free to
act unilaterally. It must give notice
and bargain with the employees’ collective-bargaining representative. Adair
Standish Corp., 292 NLRB 890 (1989). This Respondent had no established policy or
practice regarding reduction of its fixed costs. There was no past practice that employees who
indicated a willingness to be considered for layoff would automatically be
chosen. As the General Counsel correctly
points out,
It requires little speculation to believe that the Union, had it been given the opportunity, would have maintained that, insofar as the entire blue team was not being laid off, Walton, who had served as an observer for the Union at the representation election and who was second in seniority with the predecessor and certified to repair diesel engines, should not be laid off. Costs could be reduced in various ways other than layoffs, including introducing rotating shifts or instituting the option of job sharing. See Holmes & Narver, supra at 147. Union Steward Gary Shuler testified that, when former team leader, Bob Lay, had that position taken away, he was “moved down” to automotive technician. Although the record does not establish whether this occurred under the Respondent or the predecessor, demotion of Walton, rather than layoff, was certainly an option open to the Respondent.
Similarly, insofar as there was no notice to the Union
regarding the layoff of a parts department employee, there was no opportunity
for the
The Respondent, by addressing the need to reduce fixed costs by unilaterally implementing a policy of layoffs without notice to or bargaining with the Union and thereafter selecting the employees to be laid off without notice to or bargaining with the Union violated Section 8(a)(5) of the Act.
b. The warning and discharge
Although the Respondent had a published rule prohibiting tardiness, that rule was not enforced. The absence of enforcement is established by the admission of Jang that, prior to December 28, no employee had been disciplined for tardiness and the stipulation of the parties that reflects multiple instances of tardiness by employees in the parts department. Tardiness played no role in the Respondent’s layoff decisions insofar as Kevin Botkins, who had no tardies in November, was chosen for layoff whereas employee Andrew Edwards, who was tardy five times in November, and employee Samuel Dishun, who was tardy seven times in November, were not laid off. Neither Edwards, who was tardy 3 times in December, nor Dishun, who was tardy 15 times, were disciplined on any occasion of tardiness prior to December 28. There is no evidence that Dishun had been tardy on December 28 when he was warned for tardiness. The Respondent had, prior to that date, tolerated tardiness and overlooked tardiness infractions.
The Respondent’s brief does not address the discharge of
Dishun. It is undisputed that there was no notice to the
A unilateral change in enforcement policy violates the
Act. “[D]espite the Respondent’s written policy . . . the Respondent had not
previously enforced this requirement. . . .” Flambeau
Airmold Corp., 334 NLRB 165, 166 (2001). The Respondent’s unprecedented enforcement of
its previously unenforced tardiness policy implemented a change in policy that
affected employees’ terms and conditions of employment. The
Conclusion of Law
By laying off and warning and discharging employees without notice to and bargaining with the Union, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act.4
In cases in which the General Counsel alleges an 8(a)(5) violation as a result of failure to bargain over layoffs in circumstances in which it was obligated to bargain, “then a full backpay remedy for the layoffs is in order.” Fast Food Merchandisers, 291 NLRB 897, 901 (1988). Likewise, when employees are discharged pursuant to unlawfully changed rules or policies, the discharged employees are entitled to reinstatement and a full backpay remedy. See Great Western Produce, supra at 1008.
At the hearing, counsel for the Respondent argued that the zipper clause constituted settlement of “all outstanding issues” including the issues raised by the complaint. In its brief, counsel for the Respondent, while maintaining that the Respondent was not obligated to bargain over the layoff decision, argues that any effects bargaining obligation was waived because, after the Union had notice of the layoffs, “it never sought to engage in effects bargaining” and it agreed to the definition of agreement, the zipper clause, in which it agreed that, during negotiations, it had the “opportunity to submit all items appropriate for collective bargaining; that the Union expressly waives the right to submit any additional items for negotiation during the term of this Agreement. . . .”
Contrary to the foregoing argument, the decision to lay
off was made after the elections when Jang and her partners “look[ed] at the
work and decide[d] . . . at that time
that the best thing to do would be to cut one team out of the service department.”
Insofar as the Union did not learn of
the layoffs until after they had occurred, the
A waiver must be clear and unmistakable. It is undisputed that there was no discussion of the effect of the zipper clause with regard to the outstanding unfair labor practice complaint which had issued on August 23, 2006. “Any waiver of an employer’s backpay liability by a union cannot be lightly inferred, however, but must be in ‘clear and unmistakable’ language. . . . A wrap-up clause of this nature, which does no more than indicate that the parties have embodied their full bargaining agreement in the written contract, affords no basis for an inference that the agreement contains an implied understanding over and beyond those actually written into the contract.” Master Appliance Corp., 164 NLRB 1189, 1190 (1967). See also United States Gypsum Co., 155 NLRB 1216, 1219 (1965). The contract reflects the agreement between the parties relating to the employment relationship. It does not purport to alter statutory rights or settle an outstanding unfair labor practice complaint. The General Counsel, in August 2006, had issued a complaint seeking an adjudication in vindication of the alleged infringement of statutory rights. The Respondent made no motion to dismiss the complaint upon execution of the collective-bargaining agreement in November 2006. Even if there were some basis for claiming a purported waiver, there would remain the question whether “under the facts in any given case would such a waiver effectuate the policies of the Act?” Finishline Industries, 181 NLRB 756, 759 (1970). The zipper clause does not preclude an appropriate remedy for the unfair labor practices found herein.
The Respondent having unlawfully laid off Stanley Walton, Kevin Botkins, and Harold Thornton and having unlawfully warned and discharged Samuel Dishun, it must offer Stanley Walton, Harold Thornton, and Samuel Dishun reinstatement and make them and the estate of Kevin Botkins whole for any loss of earnings and other benefits, computed on a quarterly basis from their respective dates of termination to date of proper offer of reinstatement or date of death, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
The Respondent must also post an appropriate notice.
On these findings of fact and conclusions of law and on the entire record, I issue the following recommended5
ORDER
The Respondent, Consolidated Equities Realty #3, LLC d/b/a
Bob Townsend/Colerain Ford,
1. Cease and desist from
(a) Laying off and warning and discharging employees represented
by District Lodge 34, International Association of Machinists and Aerospace
Workers, AFL–CIO, in its automotive technicians unit, service writers unit, and
parts department unit without giving notice to and bargaining with the
(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.
(a) Within 14 days from the date of this Order, offer Stanley Walton, Harold Thornton, and Samuel Dishun full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed.
(b) Make Stanley Walton, Harold Thornton, Samuel Dishun and the estate of Kevin Botkins whole for any loss of earnings and other benefits suffered as a result of the discrimination against them in the manner set forth in the remedy section of the decision.
(c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful layoffs and warning and discharge, and within 3 days thereafter notify Stanley Walton, Harold Thornton, and Samuel Dishun in writing that this has been done and that the layoffs and discharge will not be used against them in any way.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facilities in
(f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
It is further ordered that the complaint is dismissed insofar as it alleges violations of the Act not specifically found.
Dated,
APPENDIX
Notice To
Employees
Posted
by Order of the
National
Labor Relations Board
An Agency of the
The National Labor Relations
Board has found that we violated Federal labor law and has ordered us to post
and obey this notice.
federal law gives you
the right to
Form, join, or assist a
union
Choose representatives to
bargain with us on your behalf
Act together with other
employees for your benefit and protection
Choose not to engage in any
of these protected activities.
We will not lay off or warn or discharge any of you who are represented by District Lodge 34, International Association of Machinists and Aerospace Workers, AFL–CIO, in the automotive technicians unit, service writers unit, and parts department unit without giving notice to and bargaining with the Union.
We will not in any like or related manner interfere with, restrain, or coerce any of you in the exercise of your rights guaranteed by Section 7 of the Act.
We will, within 14 days from the date of the Board’s Order, offer Stanley Walton, Harold Thornton, and Samuel Dishun full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed.
We will make Stanley Walton, Harold Thornton, Samuel Dishun, and the estate of Kevin Botkins whole for any loss of earnings and other benefits suffered as a result of the unlawful action taken against them in the manner set forth in the remedy section of the decision.
We will, within 14 days from the date of the Board’s Order remove from our files any reference to the unlawful layoffs and warning and discharge, and within 3 days thereafter notify Stanley Walton, Harold Thornton, and Samuel Dishun in writing that this has been done and that the layoffs and discharge will not be used against them in any way.
Consolidated Equities Realty #3, LLC d/b/a Bob
Townsend/Colerain Ford
1 There are no exceptions to the judge’s dismissal of the allegations that the Respondent violated Sec. 8(a)(1) of the Act by threatening that unionization would be futile, or Sec. 8(a)(3) and (1) of the Act by laying off employee Stanley Walton. There are also no exceptions to the judge’s finding that the Respondent violated Sec. 8(a)(5) and (1) of the Act by unilaterally warning and discharging employee Samuel Dishun.
2 The Respondent has
excepted to some of the judge’s credibility findings. The Board’s established policy is not to
overrule an administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91
The Respondent contends that some of the judge’s findings and conclusions demonstrate prejudice. On careful examination of the judge’s decision and the entire record, we are satisfied that the Respondent’s contentions are without merit.
3 We shall modify the judge’s recommended Order to conform to the violations found.
1 All dates are in 2005, unless otherwise indicated. The charge in Case 9–CA–42545 was filed on January 6, 2006, and amended on January 18, 2006. The charge in Case 9–CA–42709 was filed on March 16, 2006, and was amended on June 26, 2006. The charge in Case 9–CA–42710 was filed on March 16, 2006. The charge in Case 9–CA–42921 was filed on June 26, 2006, and was amended on August 21, 2006.
2 At the outset of the hearing, I denied a motion by counsel for the General Counsel to keep the record open for the potential consolidation of Case 9–CA–43304 with these cases. The investigation of the charge in that case had not been concluded. The conduct alleged in that charge is unrelated to the allegations of the complaint and occurred in November 2006, almost a year after the alleged unfair labor practices in this proceeding.
3 The automotive
technicians unit is: All full-time and regular part-time automotive technicians
employed by the Employer at its
The service writers unit is: All full-time and regular part-time service writers employed by the Employer at its 8571 Colerain Avenue, Cincinnati, Ohio facility, but excluding office clerical employees, professional employees, guards and supervisors as defined in the Act.
The parts department unit is: All full-time and regular part-time parts department employees employed by the Employer at its 8571 Colerain Avenue, Cincinnati, Ohio facility, but excluding office clerical employees, professional employees, guards and supervisors as defined in the Act.
4 Kevin Botkins died in October 2006, thus obviating the remedy of reinstatement. I shall recommend that his estate receive whatever backpay to which he would have been entitled.
5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes.
6 If this Order is
enforced by a judgment of a