Heuer International Trucks, Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1986

279 N.L.R.B. 127 (N.L.R.B. 1986)

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.