Great Dane Trailers, Inc.

National Labor Relations Board - Board Decisions

Jun 9, 1971

191 N.L.R.B. 6 (N.L.R.B. 1971)

6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Great Dane Trailers , Inc. and Truck Drivers and Help-
ers Local 728. Case 10-CA-8730
June 9, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND BROWN
Upon a charge filed on November 25, 1970, by Truck
Drivers and Helpers Local 728, herein called the
Union, and duly served on Great Dane Trailers, Inc.,
herein called the Respondent, the General Counsel of
the National Labor Relations Board, by the Regional
Director for Region 10, issued a complaint on January
13, 1971, against Respondent, alleging that Respond-
ent 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 a
Trial Examiner were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on November 16, 1970,
following a Board election in Case 10-RC-8028, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commencing
on or about November 23, 1970, and at all times there-
after, Respondent has refused, and continues 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
January 25, 1971, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint and alleging as a separate
defense that, because of the pendency in the United
States Court of Appeals for the Fourth Circuit of a
related unfair labor practice proceeding involving the
same parties which relates to the validity and effective-
ness of the underlying certification, the Board should
either decline jurisdiction over the complaint herein or
alternatively decline to act herein until after the court
has ruled.
On March 8, 1971, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on March 11, 1971, the
Board issued an order transferring the proceeding to
' Official notice is taken of the record in the representation proceeding,
Case 10-RC-8028, as the term "record" is defined in Secs. 102.68 and
102 69(f) of the Board's Rules and Regulations, Series 8, as amended See
LTV Electrosystems, Inc., 166 NLRB 938, enfd. 388 F.2d 683 (C.A 4,
1968), Golden Age Beverage Co., 167 NLRB 151, Intertype Co. v. Penello,
269 F Supp. 573 (D.C. Va., 1967); Follett Corp, 164 NLRB 378, enfd. 397
F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA.
the Board and a Notice To Show Cause why the Gen-
eral Counsel's Motion for Summary Judgment should
not be granted. Respondent thereafter filed a response
to Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with 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, the Respondent denies that
the Union, certified by the Regional Director in Case
10-RC-8028, is the exclusive majority bargaining rep-
resentative of the employees in the appropriate unit
and, therefore, opposes the grant of the General Coun-
sel's Motion for Summary Judgment.
As the election in Case 10-RC-8028, conducted on
December 19, 1969, pursuant to a Stipulation for Cer-
tification Upon Consent Election, was indecisive, a
runoff election was conducted on January 9, 1970. The
tally of ballots in that election showed that of approxi-
mately 700 eligible voters, 699 cast valid ballots, of
which 346 were cast for, and 346 against, the Union.
There were 7 challenged ballots which were determina-
tive of the results of the election. No objections to the
election were filed.
Subsequently, the Acting Regional Director investi-
gated the challenges and on February 19, 1970, issued
his report on challenged ballots in which he recom-
mended (1) that the Board sustain the challenges to two
of the ballots, (2) that the Board defer disposition of the
remaining 5 ballots pending a determination of the un-
fair labor practice charges in Case 10-CA-8095, in
which 5 challenged voters were alleged to have been
discriminatorily discharged, and (3) that the appropri-
ate certification be subsequently issued. No objections
having been filed to the Acting Regional Director, the
Board, on March 13, 1970, adopted the Acting Re-
gional Director's recommendations.
Thereafter, on July 1, 1970, the Trial Examiner is-
sued his Decision and Order in 10-CA-8095, finding,
inter alia, that the Respondent had discharged two of
the five alleged discriminatees. The Respondent filed
exceptions to the Trial Examiner's Decision. Subse-
quently, on October 31, 1970, the Board issued its
Decision and Order in which it adopted, inter alia, this
191 NLRB No. 8
OREAT DANE TRAILERS, INC. 7
finding of the Trial Examiner.2 Pursuant to the direc-
tions in the Board's Order of March 13, 1970, the
ballots of the two individuals were opened and counted
and a revised tally of ballots issued on November 9,
1970. The talley showed that of approximately 700
eligible voters, 699 cast valid ballots, of which 348 were
for, and 346 against , the Union and'the challenges to
five ballots were sustained. Accordingly, on November
16, 1970, the Regional Director certified the Union as
the exclusive bargaining representative of the em-
ployees in the appropriate unit.
It is well settled that in the absence of newly discov-
ered or previously unavailable evidence or special cir-
cumstances 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.'
All issues raised by the Respondent in this proceed-
ing were or could have been litigated in the prior repre-
sentation proceeding, and the 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
the Respondent has not raised any issue which is prop-
erly litigable in this unfair labor practice proceeding.
In its answer to the complaint and response to the
Notice To Show Cause, the Respondent also argues
that the resolution of the related unfair labor practice
proceeding in Case 10-CA-8095 is being judicially re-
viewed by the U.S. Court of Appeals for the Fourth
Circuit and the court's decision could materially affect
the validity and effectiveness of the Union's certifica-
tion. Accordingly, the Respondent further argues that
the Board should either decline to assert jurisdiction
over the complaint herein or alternatively decline to
decide the issues until the court has judicially reviewed
the unfair labor practice proceeding in Case 10-CA-
8095. Respondent's arguments, in our view. really re-
late to the matter of coordinating enforcement of the
order in this proceeding with enforcement of our order
in Case 10-CA-8095. As such they are more appropri-
ately considered in the postdecisional determinations
relating to such matters. In view of the provisions of
Section 10(g) of the Act and for the reasons expressed
in our recent decision in Porta-Kamp,' we find no merit
in the Respondent's argument. We shall, accordingly,
grant the Motion for Summary Judgment.5
: Great Dane Trailers, Inc., 186 NLRB No. 43.
See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941):
Rules and Regulations of the Board, Secs. 102.67(1) and 102 69(c).
4 Porta-Kamp Manufacturing Company, Inc., 189 NLRB No. 137,
Chairman Miller dissenting on the basis of his dissent in the underlying
8(a)(3) case.
, Winchester Spinning Corp, 171 NLRB No. 116.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material
herein, a Georgia corporation with an office and place
of business located at Savannah, Georgia, where it is
engaged in the manufacture and sale of freight-hauling
trailers.
Respondent, during the past calendar year, which
period is representative of all times material herein,
sold and shipped finished products valued in excess of
$50,000 directly to customers located outside the State
of Georgia.
We find, on the basis of the foregoing, that Respond-
ent 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 effectu-
ate the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Truck Drivers and Helpers Local 728 is a labor orga-
nization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent consti-
tute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All production and maintenance employees em-
ployed by Respondent at its Lathrop Avenue,
Savannah, Georgia location, but excluding all
office clerical employees, technical employees,
guards and supervisors as defined in the Act.
2. The certification
On January 9, 1970, a majority of the employees of
Respondent in said unit, in a secret ballot runoff elec-
tion conducted under the supervision of the Regional
Director for Region 10 designated the Union as their
representative for the purpose of collective bargaining
with the Respondent. The Union was certified as the
collective-bargaining representative of the employees in
said unit on November 16, 1970, and the Union contin-
ues to be such exclusive representative within the
meaning of Section 9(a) of the Act. -
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about November 17, 1970, and
at all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on or
about November 23, 1970, and continuing at all times
thereafter to date, the Respondent has refused, and
continues to refuse, to recognize and bargain with the
Union as the exclusive representative for collective bar-
gaining of all employees in said unit.
Accordingly, we find that the Respondent has, since
November 23, 1970, 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, Respondent 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 operations de-
scribed 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 commerce.
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, bar-
gain collectively with the Union as the exclusive repre-
sentative of all employees in the appropriate unit, and,
if an understanding is reached, embody such under-
standing in a signed agreement.
In order to insure that the employees in the appropri-
ate unit will be accorded the services of their selected
bargaining agent for the period provided by law, we
shall construe the initial period of certification as begin-
ning on the date Respondent commences to bargain in
good faith with the Union as the recognized bargaining
representative in the appropriate unit. See Mar-Jac
Poultry Company, Inc., 136 NLRB 785; Commerce
Company d/b/a/ Lamar Hotel, 140 NLRB 226, 229,
enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421, enfd. 350 F.2d 57 (C.A. 10).
The Board, upon the basis of the foregoing facts and
the entire record, makes the following:
CONCLUSIONS OF LAW
1. Great Dane Trailers, Inc., is an employer engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act. -
2. Truck Drivers and Helpers Local 728 is a labor
organization within the meaning of Section 2(5) of the
Act.
3. All production and maintenance employees em-
ployed by Respondent at its Lathrop Avenue, Savan-
nah, Georgia location, but excluding all office clerical
employees, technical employees, guards and super-
visors as defined in the Act constitute a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since November 16, 1970, the above-named labor
organization has been and now is the certified and ex-
clusive representative of all employees in the aforesaid
appropriate unit for the purpose of collective bargain-
ing within the meaning of Section 9(a) of the Act.
5. By refusing on or about November 23, 1970, and
at all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Respond-
ent 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, Respondent
has interfered with, restrained, and coerced, and is in-
terfering with, restraining, and coercing, employees in
the exercise of the rights guaranteed to them in Section
7 of the Act, and thereby has engaged in and is engag-
ing 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 meaning
of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that Respondent, Great Dane
Trailers, Inc., its officers, agents, successors, and as-
signs, 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 Truck Drivers and Helpers as the
exclusive bargaining representative of its employees in
the following appropriate unit:
All production and maintenance employees em-
ployed by Respondent at its Lathrop Avenue,
Savannah, Georgia location, but excluding all
office clerical employees, technical employees,
guards and supervisors as defined in the Act.
GREAT DANE TRAILERS, INC. 9
(b) In any like or related manner interfering with,
restraining, or coercing employees in the rights guaran-
teed 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 la-
bor organization as the exclusive representative of all
employees in the aforesaid appropriate unit with re-
spect 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.
(b) Post at its Savannah, Georgia, location copies of
the attached notice marked "Appendix."6 Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 10, after being duly signed by Respond-
ent's representative, shall be posted by Respondent im-
mediately 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 al-
tered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
terms and conditions of employment with Truck
Drivers and Helpers Local 728 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 Sec-
tion 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 de-
scribed below, with respect to rates of pay, wages,
hours, and other terms and conditions of employ-
ment, and, if an understanding is reached, embody
such understanding in a signed agreement. The
bargaining unit is:
All production and maintenance em-
ployees employed by Respondent at its La-
throp Avenue, Savannah, Georgia location,
but excluding all office clerical employees,
technical employees, guards and supervisors
as defined in the Act.
GREAT DANE TRAILERS,
INC.
(Employer)
6 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 be changed
to 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
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and, must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Peachtree Building, Room 701, 730 Peachtree
Street, N.E., Atlanta, Georgia 30308, Telephone 404-
526-5760.