Heuer International Trucks, Inc.

HEUER INTERNATIONAL TRUCKS 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 31 March 1986 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS Upon a charge filed by the Union on 14 April 1983 and an amended charge filed on 19 April 1983, the General Counsel of the National Labor Relations Board issued a complaint on 21 April 1983 against the Company, the Respondent, alleg- ing that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act. The complaint alleges that on 8 March 1983, fol- lowing a Board election in Case 10-RC-12709, the Union was certified as the exclusive collective- bar- gaining representative of the Company's employees in the unit found appropriate. (Official notice is taken of the "record" in the representation pro- ceeding as defined in the Board's Rules and Regu- lations, Secs. 102.68 and 102.69(g), amended Sept. 9, 1981, 46 Fed.Reg. 45922 (1981); Frontier Hotel, 265 NLRB 343 (1982).) The complaint further al- leges that since 8 April 1983 the Company has re- fused to bargain with the Union. On 2 May 1983 the Company filed its answer admitting in part and denying in part the allegations in the complaint. On 19 May 1983 the General Counsel filed a Motion to Transfer Case to and Continue Proceed- ing before the Board and for Summary Judgment. On 26 May 1983 the Board issued an order trans- ferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted . The Company filed a response and a motion for reconsideration. On 14 December 1984 a panel majority of the Board issued an order de- nying the General Counsel's Motion for Summary Judgment, granting the Respondent's motion for reconsideration of the unit issue in this proceeding, and staying the certification of the Union.' The Board panel majority concluded there was a con- flict in Board law regarding the unit at issue and this was sufficient to defeat the General Counsel's Motion for Summary Judgment. The Board indi- cated the parties could file further briefs on the unit question. On 4 February 1985 the Respondent filed a brief on review. ' 273 NLRB 361 (1984) (Former Member Zimmerman dissenting). 127 The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. We have decided that the Board's earlier order denying the General Counsel's Motion for Summa- ry Judgment and granting the Respondent's motion for reconsideration on the unit question was im- providently granted and we now vacate that order. The defense raised by the Respondent to the Notice to Show Cause was the same argument con- sistently raised by the Respondent in the underly- ing representation proceeding. That argument was rejected in the representation proceeding and under the rule against relitigation described more fully below was not a valid basis for staying the Board's certification. We now proceed to a consideration of the General Counsel's Motion for Summary Judg- ment. Ruling on Motion for Summary Judgment In his motion, the General Counsel contends that summary judgment is appropriate because the Re- spondent's answer raised no litigable issue of fact. In its response to the Notice to Show Cause and its motion for reconsideration, the Respondent denied the appropriateness of the certified bargaining unit and asserted that the Regional Director failed to discuss cases cited to him by the Respondent which showed the unit was inappropriate. In its brief on review, it asserts that the Regional Direc- tor's unit determination departed from established Board precedent and that any conflict in Board law on this unit question should be resolved in favor of the broader unit alleged appropriate by the Re- spondent. Review of the record herein, including the record in Case 10-RC-12709, establishes that, at the hearing, the Respondent sought to include in the bargaining unit clerks and employees in the parts department. It further contended that the unit was inappropriate because there was no community of interest between the mechanics and service utili- tyman. In his Decision and Direction of Election issued on 26 January 1983 the Regional Director excluded from the unit parts department employees and clerical employees. Thereafter, on 8 February 1983, the Respondent filed with the Board a timely request for review of the Regional Director's deci- sion in which it argued that the Regional Direc- tor's decision had departed from Board precedent and that the Regional Director had made incom- plete and erroneous factual determinations regard- ing the employees' community of interest. The Union won the election on 25 February 1983, with challenged ballots insufficient to affect the results. On 28 February 1983 the Board denied the request 279 NLRB No. 18 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for review as raising no substantial issues except concerning the unit placement of the service de- partment utilityman, and amended the Decision and Direction of Election to permit him to vote under challenge. Thereafter, on 4 March 1983 the Re- spondent filed a motion for stay of the certification. On that same day, the Respondent filed a motion for reconsideration seeking to relitigate the unit issue. On 8 March 1983 the Regional Director cer- tified the Union. The Board, on 25 March 1983, denied the Respondent's motion for reconsideration because it raised only issues considered at earlier stages of the proceedings. It is well settled that in the absence of newly dis- covered 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 issues raised by the Company were or could have been litigated in the prior representation pro- ceeding. The Company does not offer to adduce at a hearing any newly discovered and previously un- available evidence, nor does it allege any special circumstances that would require the Board to re- examine the decision made in the representation proceeding. We therefore find that the Company has not raised any issue that is properly litigable in this unfair labor practice proceeding. There are strong policy reasons which favor the rule we here apply, and which militate against the relitigation of issues already decided in the representation pro- ceeding except in special circumstances. We find no such special circumstances are present here. Ac- cordingly we grant the Motion for Summary Judg- ment. On the entire record, the Board makes the fol- lowing FINDINGS OF FACT 1. JURISDICTION The Company, a Delaware corporation, 2 has been engaged in the sales and servicing of trucks at its Kennesaw, Georgia facility where it annually purchased and received goods valued in excess of $50,000 directly from suppliers located outside the State of Georgia. We find that the Company is an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act and that the 2 The complaint alleged that the Respondent was a Georgia corpora- tion In its answer, the Respondent admitted that it was a Delaware cor- poration 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 on 25 February 1983 the Union was certified as the collective-bargaining representative of the employees in the following appropriate unit: All service department employees employed by Heuer International Trucks, Inc., at its Kennesaw, Georgia place of business, includ- ing all mechanics, mechanic trainee, service department utility man, and shop foreman/- service writer but excluding all parts depart- ment countermen, parts counter/outside sales employee, parts utility man, parts driver, serv- ice clerical, parts and service cashier, SPIM clerk, salesmen, managerial employees, super- visors and guards as defined in the Act. The Union continues to be the exclusive represent- ative under Section 9(a) of the Act. B. Refusal to Bargain Since 21 March 1983 the Union has requested the Company to bargain, and since 8 April 1983 the Company has refused. We find that this refusal constitutes an unlawful refusal to bargain in viola- tion of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By refusing on and after 8 April 1983 to bargain with the Union as the exclusive collective-bargain- ing 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 an understanding is reached, to embody the understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the ini- tial period of the certification as beginning the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction HEUER INTERNATIONAL TRUCKS Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, Heuer International Trucks, Inc., Kennesaw, Georgia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with General Teamsters Local Union No. 528, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, War- ehousemen and Helpers of America, as the exclu- sive bargaining representative of its employees in the bargaining unit. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain with the Union as the ex- clusive representative of all employees in the fol- lowing appropriate unit on terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agree- ments. All service department employees employed by Heuer International Trucks, Inc., at its Kennesaw, Georgia place of business, includ- ing all mechanics, mechanic trainee, service department utility man, and shop foreman/- service writer but excluding all parts depart- ment countermen, parts counter/outside sales employee, parts utility man, parts driver, serv- ice clerical, parts and service cashier, SPIM clerk, salesmen, managerial employees , super- visors and guards as defined in the Act. (b) Post at its Kennesaw, Georgia facility copies of the attached notice marked "Appendix."3 Copies of the notice, on forms provided by the Re- gional Director for Region 10, after being signed by the Respondent's authorized representative, 9 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 Nation- al 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 " 129 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. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. APPF,NDIX 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 collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with General Teamsters Local Union No. 528, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, 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 exer- cise 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 employed by Heuer International Trucks, Inc., at its Kennesaw, Georgia place of business, includ- ing all mechanics, mechanic trainee, service department utility man, and shop foreman/- service writer but excluding all parts depart- ment countermen, parts counter/outside sales employee, parts utility man, parts driver, serv- ice clerical, parts and service cashier, SPIM clerk, salesmen, managerial employees, super- visors and guards as defined in the Act. HEUER INTERNATIONAL TRUCKS, INC.