Metro Truck Body, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Metro Truck Body, Inc. and Automotive Employees, Laundry Drivers & Helpers Local 88, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America. Case 31-CA- 6728 June 14, 1977 DECISION AND ORDER BY MEMBERS PENELLO, MURPHY, AND WALTHER Upon a charge filed on January 10, 1977, by Automotive Employees, Laundry Drivers & Helpers Local 88, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called the Union, and duly served on Metro Truck Body, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 31, issued a complaint and notice of hearing on February 3, 1977, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before an Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on September 29, 1976, following a Board election in Case 31-RC- 3127, the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate; I and that, commencing on or about October 4, 1976, and, more particularly, on or about January 14, 1977, and at all times thereafter, Respondent has refused, and con- tinues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On February 14, 1977, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On March 2, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on March 18, 1977, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a ' Official notice is taken of the record in the representation proceeding, Case 31-RC-3127, as the term "record" is defined in Secs. 102.68 and 10 2.69(g) of the Board's Rules and Regulations, Senes 8, as amended. See LTV Elecirosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4, 230 NLRB No. 28 response to Notice To Show Cause, entitled "Objec- tions to Motion for Summary Judgment." Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its answer to the complaint and in its response to the Notice To Show Cause, Respondent admits its refusal to bargain but denies the validity of the Board's certification of the Union on the ground that the Union's representation case petition was not supported by an adequate showing of interest and that it is entitled to a hearing on the substantial and material issue raised by its objections to the election which were erroneously overruled without a hearing. Our review of the record herein, including that in Case 31-RC-3127, discloses that Respondent, at the hearing and by letter, moved to dismiss the petition therein because of the alleged insufficiency of the showing of interest as it included authorization cards of illegal aliens who could not vote. In his Decision and Direction of Election issued August 5, 1976, the Regional Director denied the motion on the grounds that showing of interest was not litigable at the hearing and that he was satisfied that the Union's showing of interest conformed to Board require- ments. Respondent filed a timely request for review, reiterating its showing-of-interest contention. On August 30, 1976, the Board denied the request as raising no substantial issue warranting review. In an election conducted on September 1, 1976, the Union was successful by a vote of 13 to 9 with no ballots challenged. Respondent filed timely objec- tions to the election and to the tally of ballots, with supporting affidavits, in which it alleged, in sub- stance, that: (1) two ballots marked "si" should not have been counted since "si" in Spanish does not mean "yes" (si), but, rather, means "if" and, since the use of "si" identified the voters as Spanish speaking, the secrecy of the ballots was destroyed; (2) the Union failed to show a substantial interest among the employees petitioned for as required by the Act; and (3) the election was influenced by racial prejudice resulting from a strike called by the Union to force Respondent to violate Federal and state law regard- ing the employment of illegal aliens. After an investigation, but without a hearing, the Regional Director, on September 29, 1976, issued a Supple- 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (C.A. 5, 1969); Intertype Co. v. Penello, 269 F. Supp. 573 (D.C. Va., 1967); Follettrr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA, as amended. 212 METRO TRUCK BODY mental Decision and Certification of Representative in which he overruled Respondent's objections in their entirety because they failed to raise material or substantial issues which would warrant setting aside the election. Accordingly, he certified the Union. Respondent filed a timely request for review of the Regional Director's decision, with supporting exhi- bits, in which it substantially reiterated the conten- tions urged in its objections to the election and tally of ballots. In a telegraphic communication of November 1, 1976, the Board denied Respondent's request for review as raising no substantial issues warranting review. By its denial of review, the Board agreed with the Regional Director's overruling Respondent's objections without a hearing. To be entitled to a hearing, a respondent must raise material or substantial issues which would warrant setting aside the election.2 As Respondent here has not satisfied this qualification for a hearing on its election objections, it has not been denied due process by the Board's overruling its objections without a hearing.3 It thus appears that Respondent is endeavoring here to litigate matters heard and determined in the underlying representation proceeding. It is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding.4 All issues raised by Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. We shall, accordingly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: Findings of Fact I. The Business of Respondent Respondent is a California corporation with its principal office and place of business in Torrance, California, where it is engaged in the manufacture of truck bodies. Respondent annually sells goods or 2 N.L.R.B. v. Modine Manufacturing Co., 500 F.2d 914, 916 (C.A. 8, 1974), enfg. 203 NLRB 527 (1973). 3 Allied Meat Company. 220 NLRB 27 (1975); CSC Oil Comnponv, 220 NLRB 19 (1975). services valued in excess of $50,000 to customers or business enterprises within the State of California, which themselves meet one of the Board's jurisdic- tional standards other than the indirect inflow or indirect outflow standard. We find, on the basis of the foregoing, that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. 1. THE LABOR ORGANIZATION INVOLVED Automotive Employees, Laundry Drivers & Hel- pers Local 88, International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding I. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees, shipping and receiving employees, warehouse- men, truckdrivers, body repairmen, printers, mechanics, truck body builders, and leadmen; excluding all other employees, office clerical employees, professional employees, guards and supervisors as defined in the Act. 2. The certification On September 1, 1976, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Director for Region 31, designated the Union as their representative for the purpose of collective bargain- ing with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on September 29, 1976, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about September 29, 1976, and, more particularly, on or about October 4, 1976, and 4 See Pittsburgh Plate Glass Co. v. N.LRB.. 313 U.S. 146, 162 (1941): Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). 213 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at all times thereafter, the Union has requested Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about October 4, 1976, and, more particularly, on or about January 14, 1977, and continuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representa- tive for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since October 4, 1976, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with its opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of com- merce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Metro Truck Body, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Automotive Employees, Laundry Drivers & Helpers Local 88, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees, shipping and receiving employees, warehousemen, truckdrivers, body repairmen, printers, mechanics, truck body builders, and leadmen; excluding all other employees, office clerical employees, profes- sional employees, guards and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since September 29, 1976, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about October 4, 1976, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Metro Truck Body, Inc., Torrance, California, its officers, agents, successors, and assigns, shall: i. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Automotive Employ- ees, Laundry Drivers & Helpers Local 88, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America, as the exclusive 214 METRO TRUCK BODY bargaining representative of its employees in the following appropriate unit: All production and maintenance employees, shipping and receiving employees, warehouse- men, truckdrivers, body repairmen, printers, mechanics, truck body builders, and leadmen; excluding all other employees, office clerical employees, professional employees, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. Post at its office and place of business in Torrance, California, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 31, after being duly signed by Respondent's representa- tive, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 31, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. s In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Auto- motive Employees, Laundry Drivers & Helpers Local 88, International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive representa- tive of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agree- ment. The bargaining unit is: All production and maintenance employees, shipping and receiving employees, ware- housemen, truckdrivers, body repairmen, printers, mechanics, truck body builders, and leadmen; excluding all other employees, office clerical employees, professional em- ployees, guards and supervisors as defined in the Act. METRO TRUCK BODY, INC. 215