Lasalle-Deitch Co., Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1986

279 N.L.R.B. 138 (N.L.R.B. 1986)

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.