Metro Truck Body, Inc.

National Labor Relations Board - Board Decisions

Jun 14, 1977

230 N.L.R.B. 212 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Metro Truck Body, Inc. and Automotive Employees,
Laundry Drivers & Helpers Local 88, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America. Case 31-CA-
6728
June 14, 1977
DECISION AND ORDER
BY MEMBERS PENELLO, MURPHY, AND
WALTHER
Upon a charge filed on January 10, 1977, by
Automotive Employees, Laundry Drivers & Helpers
Local 88, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
herein called the Union, and duly served on Metro
Truck Body, Inc., herein called Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 31,
issued a complaint and notice of hearing on
February 3, 1977, against Respondent, alleging that
Respondent 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 an Administrative Law
Judge were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on September 29,
1976, following a Board election in Case 31-RC-
3127, the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate; I and that,
commencing on or about October 4, 1976, and, more
particularly, on or about January 14, 1977, and at all
times thereafter, Respondent has refused, and con-
tinues 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 February 14, 1977, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint.
On March 2, 1977, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on March 18, 1977, the
Board issued an order transferring the proceeding to
the Board and a Notice To Show Cause why the
General Counsel's Motion for Summary Judgment
should not be granted. Respondent thereafter filed a
' Official notice is taken of the record in the representation proceeding,
Case 31-RC-3127, as the term "record" is defined in Secs. 102.68 and
1
0
2.69(g) of the Board's Rules and Regulations, Senes 8, as amended. See
LTV Elecirosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4,
230 NLRB No. 28
response to Notice To Show Cause, entitled "Objec-
tions to Motion for Summary Judgment."
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in 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, Respondent admits its
refusal to bargain but denies the validity of the
Board's certification of the Union on the ground that
the Union's representation case petition was not
supported by an adequate showing of interest and
that it is entitled to a hearing on the substantial and
material issue raised by its objections to the election
which were erroneously overruled without a hearing.
Our review of the record herein, including that in
Case 31-RC-3127, discloses that Respondent, at the
hearing and by letter, moved to dismiss the petition
therein because of the alleged insufficiency of the
showing of interest as it included authorization cards
of illegal aliens who could not vote. In his Decision
and Direction of Election issued August 5, 1976, the
Regional Director denied the motion on the grounds
that showing of interest was not litigable at the
hearing and that he was satisfied that the Union's
showing of interest conformed to Board require-
ments. Respondent filed a timely request for review,
reiterating its showing-of-interest contention. On
August 30, 1976, the Board denied the request as
raising no substantial issue warranting review.
In an election conducted on September 1, 1976, the
Union was successful by a vote of 13 to 9 with no
ballots challenged. Respondent filed timely objec-
tions to the election and to the tally of ballots, with
supporting affidavits, in which it alleged, in sub-
stance, that: (1) two ballots marked "si" should not
have been counted since "si" in Spanish does not
mean "yes" (si), but, rather, means "if" and, since the
use of "si" identified the voters as Spanish speaking,
the secrecy of the ballots was destroyed; (2) the
Union failed to show a substantial interest among the
employees petitioned for as required by the Act; and
(3) the election was influenced by racial prejudice
resulting from a strike called by the Union to force
Respondent to violate Federal and state law regard-
ing the employment of illegal aliens. After an
investigation, but without a hearing, the Regional
Director, on September 29, 1976, issued a Supple-
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(C.A. 5, 1969); Intertype Co. v. Penello, 269 F. Supp. 573 (D.C. Va., 1967);
Follettrr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA, as amended.
212
METRO TRUCK BODY
mental Decision and Certification of Representative
in which he overruled Respondent's objections in
their entirety because they failed to raise material or
substantial issues which would warrant setting aside
the election. Accordingly, he certified the Union.
Respondent filed a timely request for review of the
Regional Director's decision, with supporting exhi-
bits, in which it substantially reiterated the conten-
tions urged in its objections to the election and tally
of ballots. In a telegraphic communication of
November 1, 1976, the Board denied Respondent's
request for review as raising no substantial issues
warranting review. By its denial of review, the Board
agreed with the Regional Director's overruling
Respondent's objections without a hearing. To be
entitled to a hearing, a respondent must raise
material or substantial issues which would warrant
setting aside the election.2 As Respondent here has
not satisfied this qualification for a hearing on its
election objections, it has not been denied due
process by the Board's overruling its objections
without a hearing.3
It thus appears that Respondent is endeavoring
here to litigate matters heard and determined in the
underlying representation proceeding.
It is well settled that in the absence of newly
discovered or 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 which were or could have been
litigated in a prior representation proceeding.4
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior
representation proceeding, and 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 Respondent has not raised any issue which
is properly litigable in this unfair labor practice
proceeding. We shall, accordingly, grant the Motion
for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
Findings of Fact
I. The Business of Respondent
Respondent is a California corporation with its
principal office and place of business in Torrance,
California, where it is engaged in the manufacture of
truck bodies. Respondent annually sells goods or
2 N.L.R.B. v. Modine Manufacturing Co., 500 F.2d 914, 916 (C.A. 8,
1974), enfg. 203 NLRB 527 (1973).
3 Allied Meat Company. 220 NLRB 27 (1975); CSC Oil Comnponv, 220
NLRB 19 (1975).
services valued in excess of $50,000 to customers or
business enterprises within the State of California,
which themselves meet one of the Board's jurisdic-
tional standards other than the indirect inflow or
indirect outflow standard.
We find, on the basis of the foregoing, that
Respondent 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 effectuate the policies of the Act to assert
jurisdiction herein.
1. THE LABOR ORGANIZATION INVOLVED
Automotive Employees, Laundry Drivers & Hel-
pers Local 88, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of
America, is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
I. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All production and maintenance employees,
shipping and receiving employees, warehouse-
men, truckdrivers, body repairmen, printers,
mechanics, truck body builders, and leadmen;
excluding all other employees, office clerical
employees, professional employees, guards and
supervisors as defined in the Act.
2. The certification
On September 1, 1976, a majority of the employees
of Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional
Director for Region 31, designated the Union as their
representative for the purpose of collective bargain-
ing with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on September 29, 1976, and the Union
continues to be such exclusive representative within
the meaning of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about September 29, 1976, and,
more particularly, on or about October 4, 1976, and
4 See Pittsburgh Plate Glass Co. v. N.LRB.. 313 U.S. 146, 162 (1941):
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
213
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at all times thereafter, the Union has requested
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about October 4, 1976, and, more
particularly, on or about January 14, 1977, and
continuing at all times thereafter to date, Respondent
has refused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in said
unit.
Accordingly, we find that Respondent has, since
October 4, 1976, 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, Respon-
dent 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 opera-
tions described 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 com-
merce.
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, bargain collectively with the Union as
the exclusive representative of all employees in the
appropriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the
appropriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate unit. See Mar-Jac Poultry Company, Inc., 136
NLRB 785 (1962); Commerce Company d/b/a Lamar
Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600
(C.A. 5, 1964), cert. denied 379 U.S. 817 (1964);
Burnett Construction Company, 149 NLRB 1419, 1421
(1964), enfd. 350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Metro Truck Body, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Automotive Employees, Laundry Drivers &
Helpers Local 88, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, is a labor organization within the meaning
of Section 2(5) of the Act.
3. All production and maintenance employees,
shipping and receiving employees, warehousemen,
truckdrivers, body repairmen, printers, mechanics,
truck body builders, and leadmen; excluding all
other employees, office clerical employees, profes-
sional employees, guards and supervisors as defined
in the Act constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
4. Since September 29, 1976, the above-named
labor organization has been and now is the certified
and exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about October 4, 1976, and
at all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent 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, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby has engaged in and
is engaging 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 mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Metro Truck Body, Inc., Torrance, California, its
officers, agents, successors, and assigns, shall:
i. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Automotive Employ-
ees, Laundry Drivers & Helpers Local 88, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, as the exclusive
214
METRO TRUCK BODY
bargaining representative of its employees in the
following appropriate unit:
All production and maintenance employees,
shipping and receiving employees, warehouse-
men, truckdrivers, body repairmen, printers,
mechanics, truck body builders, and leadmen;
excluding all other employees, office clerical
employees, professional employees, guards and
supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed 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
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect to rates of pay, wages, hours, and other terms
and conditions of employment, and, if an under-
standing is reached, embody such understanding in a
signed agreement.
Post at its office and place of business in Torrance,
California, copies of the attached notice marked
"Appendix." 5 Copies of said notice, on forms
provided by the Regional Director for Region 31,
after being duly signed by Respondent's representa-
tive, shall be posted by Respondent immediately
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
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
s 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 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
terms and conditions of employment with Auto-
motive Employees, Laundry Drivers & Helpers
Local 88, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of
America, 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
Section 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
described below, with respect 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. The bargaining unit is:
All production and maintenance employees,
shipping and receiving employees, ware-
housemen, truckdrivers, body repairmen,
printers, mechanics, truck body builders,
and leadmen; excluding all other employees,
office clerical employees, professional em-
ployees, guards and supervisors as defined in
the Act.
METRO TRUCK BODY,
INC.
215