Lasalle-Deitch Co., Inc.

138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Trade Names, Inc., a Division of LaSalle-Deitch Co., Inc. and International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Local No. 364. Case 25-CA-16555 31 March 1986 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS Upon a charge filed by the Union on 25 July 1984, the General Counsel of the National Labor Relations Board issued a complaint on 20 Septem- ber 1984 against the Company, the Respondent, al- leging that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act. The complaint alleges that on 14 June 1984, fol- lowing a Board election in Case 25-RC-7930, 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 23 July 1984 the Company has re- fused to bargain with the Union. On 4 October 1984 the Company filed its answer admitting in part and denying in part the allegations in the com- plaint. On 5 November 1984 the General Counsel filed a Motion for Summary Judgment. On 8 November 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 Company filed a response. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Summary Judgment The Company in its answer admits certain factu- al allegations of the complaint, including the Union's certification and the Company's refusal to recognize and bargain with the Union, but denies that it has committed any unfair labor practices.' i In its answer the Respondent also denies certain allegations of the complaint, including, inter alia, the paragraphs alleging the appropriate unit, the Union's certification, and that the Union is the exclusive repre- sentative of the employees in the appropriate unit The General Counsel has filed a motion to strike portions of the Respondent's answer and the Respondent has filed an opposition We find it unnecessary to pass on the General Counsel's motion to strike since the Respondent's denials merely contest the Board's findings in the underlying representation proceeding and raise no issue warranting a hearing in this proceeding The Company contends that it has no obligation to bargain with the Union, claiming that the Board's certification in Case 25-RC-79302 was improper. The Company contests the Board's finding that em- ployee David Frazier was not an agent of the Union and that certain remarks made by Frazier did not interfere with other employees' free choice in the election. 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(1) 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. Accordingly we grant the Motion for Summary Judgment.3 On the entire record, the Board makes the fol- lowing FINDINGS OF FACT 1. JURISDICTION The Company, a Delaware corporation, pro- duces, sells, and distributes axles at its facility in Elkhart, Indiana, where it annually purchases and receives goods valued in excess of $50,000 directly from sources outside Indiana and sells and ships goods valued in excess of $50,000 directly to points located outside Indiana. 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 mean- ing of Section 2(5) of the Act. 2 Members Johansen and Stephens did not participate in the represen- tation proceeding 3 Member Babson did not participate in the underlying representation proceeding In joining his colleagues in granting the General Counsel's Motion for Summary Judgment , he does so because the Respondent is not entitled to litigate in this proceeding issues which could have been or were litigated in the underlying representation proceeding 279 NLRB No. 20 TRADE NAMES, INC 139 II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held 24 June 1983 the Union was certified as the collective-bargaining representative of the employees in the following appropriate unit: All production and maintenance employees and all parts department employees in the Axle Division of the Respondent at its 735 In- dustrial Parkway, Elkhart, Indiana, facility; BUT EXCLUDING all truckdrivers, all ware- housemen, all supervisors, all guards, and all other employees. The Union continues to be the exclusive represent- ative under Section 9(a) of the Act. B. Refusal to Bargain Since 23 July 1984 the Union has requested the Company to bargain, and since 23 July 1984 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 23 July 1984 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 Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, Trade Names, Inc., a Division of LaSalle-Deitch Co., Inc., Elkhart, Indiana, its offi- cers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 364 as the ex- clusive bargaining representative of the 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 by 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 the employees in the fol- lowing appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All production and maintenance employees and all parts department employees in the Axle Division of the Respondent at its 735 In- dustrial Parkway, Elkhart, Indiana, facility; BUT EXCLUDING all truckdrivers, all ware- housemen, all supervisors, all guards, and all other employees. (b) Post at its facility in Elkhart, Indiana, copies of the attached notice marked "Appendix."4 Copies of the notice, on forms provided by the Re- gional Director for Region 25, 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. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 4 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 " 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Internation- al Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Local No. 364 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 production and maintenance employees and all parts department employees in the Axle Division of the Employer at its 735 In- dustrial Parkway, Elkhart, Indiana, facility; BUT EXCLUDING all truckdrivers, all ware- housemen, all supervisors, all guards, and all other employees. TRADE NAMES, INC., A DIVISION OF LASALLE-DEITCH CO., INC.