Heuer International Trucks, Inc.

HEUER INTERNATIONAL TRUCKS 361 Heuer International Trucks, Inc. and General Team- sters Local Union No. 528, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 10-CA-19174 14 December 1984 ORDER DENYING THE GENERAL -COUNSEL'S MOTION FOR SUMMARY JUDGMENT, GRANTING THE RESPONDENT'S MOTION FOR ' RECONSIDERATION, AND STAYING THE CERTIFICATION OF THE COLLECTIVE-BARGAINING REPRESENTATIVE BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 21 April 1,983 1 the Regional Director . 'for Region 10 issued a Complaint and notice of hearing - in the above-entitled proceeding, alleging that the Respondent has engaged in and is engaging' in -cer- tain unfair labor practices affecting commerce within the meaning of Section '8(a)(1) and (5) and Section 2(6) and (7) of the National Labor Rela- tions Act. Specifically the complaint alleges that the Respondent is engaged in the sales .and servic- ing of trucks. On 8 March the Union was certified as the collective-bargaining representative of a service department unit that includes mechanics, mechanic trainees, service department utility man, and shop foreman/service writer at the Respond- ent's Kennesaw, Georgia facility. 2 Thereafter on 21 March the Union requested to bargain with the Re- spondent. However, on 8 April and at all times thereafter the Respondent has refused to bargain with the Union on the basis that the unit. determi- nation was inappropriate. Subsequently, the Re- spondent filed an, answer to the complaint, -admit- ting that it refused to bargain and again maintain- ing that the appropriate unit should include all parts department employees and service clerical employees. All dates are in 1983 unless otherwise indicated 2 On 8 February the Respondent filed a request for review of the Re- gional Director's Decision and Direction of Election and contended that the unit should include all employees in the parts department and three clerks It further contended that the unit was inappropriate because there was no community of interest between the mechanics and service utility man On 25 February the Board denied this request for review, and stated that the election raised a substantial issue solely as to the unit placement of the service department's utility man However, the Board concluded that this Issue should be resolved through the challenge proce- dure, and amended the Decision and Direction of Election to permit them to vote under challenge Thereafter on 4 March the Respondent filed a motion for reconsideration and reasserted its position that the clerks and parts employees should be included in the unit On 25 March the Board denied this motion because it did not raise an issue not previ- ously considered Chairman Dotson notes that he did not partici- pate in the underlying -representation case. Member Hunter dissented in that proceeding because he would have granted the Employer's request for, review of the Regional Director's unit determina- tion. Thereafter on 19 May the General Counsel filed with the Board a Motion for Summary Judgment on grounds that the Respondent violated Section 8(a)(5) by its'refusal to bargain. The General Coun- sel asserted that the Respondent's contentions of- fered no newly discovered or previously unavail- able evidence, and raised no issue not previously litigated. On 26 May the Board issued an order transfer- ring the proceeding to the Board and Notice to Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Thereafter on 28 May the Respondent filed an answer to the Notice to Show Cause and filed a further pleading entitled "Motion for Reconsider- ation." The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. We agree that the present case warrants our re- consideration and therefore deny the General Counsel's Motion for Summary Judgment. Al- though our dissenting colleague would grant the motion on the basis that the Board previously re- jected the Respondent's arguments and that our de- cision encourages relitigation in unit determina- tions, it is well settled that a motion for summary judgment should only be granted when issues of fact and law are not in dispute. Here it cannot be disputed that there exists a conflict in Board law regarding the appropriate service department unit. In International Harvester Co., 119 NLRB 1709 (1958), the Board held that "partsmen" though working with "craftmen" were excluded . from the bargaining unit since they did not exercise craft skills: The Board also applied International Harvest- er Co. recently in Taylor Bros., 230 NLRB 861, 870 (077). There the Board excluded partsmen from the mechanic unit. However, in Austin Ford, 136 NLRB 1398 (1962), cited by the Respondent, the Board found that the mechanics there were not a separate appropriate unit and stated that all service and parts department employees should be included in the same bargaining unit. Similarly, as noted by the Respondent, in Graneto-Datsun, 203 NLRB 550 (1973), the Board refused to separate mechanics from the rest of the service department employees and dismissed the 8(a)(5) allegation because there had been no demand for recognition in the appro- priate unit. In Gregory Chevrolet, 258 NLRB 233 273 NLRB No. 57 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (1981), the Board included parts department em- ployees with mechanics. Therefore, as clearly indi- cated by the inconsistency in the cited cases, it would be highly improper to grant the Motion for Summary Judgment when We have concluded that a clarification of existing Board law on this issue is required.3 The Respondent in its answer and motion for re- consideration ,renews its contention that the only appropriate unit consists of all parts and service de- partment employees at its facility. After consider- ing that argument in light of the Regional Direc- tor's decision in the underlying representation case, we conclude that a conflict in Board law exists as to what constitutes the appropriate unit for a motor vehicle service department. Accordingly, we have decided to reconsider the Board's previous deter- mination of this unit at the Respondent's facility. ORDER It is ordered that the General Counsel's Motion for Summary Judgment is denied, based on the ex- isting conflict in Board law. IT IS FURTHER ORDERED that the Respondent's motion for reconsideration is granted. IT IS FURTHER ORDERED that the certification of the collective-bargaining representative be stayed pending resolution of this issue. The parties herein may file briefs with the Board in Washington, D.C., on or before 28 -December 1984. MEMBER ZIMMERMAN, dissenting. The Respondent's defense to the summary judg- ment motion and 8(a)(5) complaint here is, quite simply, a reiteration of the same argument about Board precedent and the appropriate bargaining unit that was twice made and twice rejected by the Board in the underlying representation proceeding, Case 10-RC-12709. The third time around, howev- 3 Thus, contrary to our dissenting colleague, we do not believe that we are required to cite "precedent which holds as a matter of law that a sep- arate mechanics' unit cannot be found appropriate" in order to deny a . motion for summary judgment er, my colleagues in the majority now see an un- specified conflict in Board law where none was seen before, even though the Respondent has con- sistently alleged it. Consequently, the majority will permit reconsideration and relitigation of a repre- sentation proceeding bargaining unit issue in the absence of newly discovered evidence, an interven- ing change in Board law, or any other genuine spe- cial circumstance which would require the Board to reconsider its earlier decisions. This decision derogates the Board's well-established policy against relitigation of representation issues in an 8(a)(5) case, 1 creates uncertainty about the finality of Board election procedures, encourages incessant litigation, and thereby contravenes the statutory scheme for the promotion of stability in labor rela- tions. 2 The majority fails 'to acknowledge that the Respondent has exhausted its appeals in this admin- istrative forum. It should now be required to rec- ognize and bargain with the certified union in the unit found appropriate or to challenge the Board's unit determination before a Federal court of ap- peals. The question whether relitigation is proper here subsumes the question whether a conflict in Board law exists; the majority erroneously suggests the reverse. To .repeat, the Board -has twice considered and rejected the argument that a conflict exists. It settled the issue of law for this case. Had my col- leagues participated in those actions, the outcome would undoubtedly have been different. Before stating now that they see a conflict where their predecessors did not, however, they must identify some independent reason for even looking at the issue. They have not done so.3 1 See Pittsburgh Plate Glass v NLRB, 313 U S 146, 162 (1942), Board's Rules and Regulations, Secs 102 67(1) and 102 69(c) 2 .See my dissenting opinion in Sub-Zero Freezer Go, 271 NLRB 47 (1984) 3 I note parenthetically that the majority has failed to cite any prece- dent which holds as a matter of law that a separate mechanics' unit cannot be found appropnate