R & S Truck Body Co.

National Labor Relations Board - Board Decisions

Jun 22, 2001

334 N.L.R.B. 58 (N.L.R.B. 2001)

334 NLRB No. 58
1
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
R & S Truck Body Company, Inc. and National Con-
ference of Firemen and Oilers, Service Employees
International Union, AFL–CIO. Case 9–CA–38372
June 22, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN AND TRUESDALE
Pursuant to a charge filed on March 29, 2001, the Act-
ing General Counsel of the National Labor Relations
Board issued a complaint on April 2, 2001, alleging that
the Respondent has violated Section 8(a)(5) and (1) of
the National Labor Relations Act by refusing the Union’s
request to bargain following the Union’s certification in
Case 9–RC–16781. (Official notice is taken of the “re-
cord” in the representation proceeding as defined in the
Board’s Rules and Regulations, Secs. 102.68 and
102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The
Respondent filed an answer admitting in part and deny-
ing in part the allegations in the complaint.
On April 16, 2001, the Acting General Counsel filed a
Motion for Summary Judgment and Memorandum in
Support. On April 18, 2001, 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
Respondent filed a response.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
In its answer the Respondent admits its refusal to bar-
gain but attacks the validity of the certification on the
basis of its objections to the election and the Board’s
disposition of certain challenged ballots in the represen-
tation proceeding.1
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding. The Respondent does not offer to ad-

1 The Respondent’s answer denies that the certified unit is appropri-
ate. The Respondent, however, stipulated to the appropriateness of the
unit in the underlying representation case. Any question regarding the
appropriateness of the unit could and should have been raised in the
representat ion proceeding. Playhouse Square Foundation , 291 NLRB
995 fn. 1 (1988). To the extent that the Respondent’s denial may call
into question the resolution of certain unit placement issues in the rep-
resentation case, those issues are not properly litigable in this unfair
labor practice proceeding. Accordingly, we find that the Respondent’s
denial of this allegation does not raise any issue warranting a hearing in
this proceeding.
duce at a hearing any newly discovered and previously
unavailable evidence, nor does it allege any special cir-
cumstances that would require the Board to reexamine
the decision made in the representation proceeding.2 We
therefore find that the Respondent has not raised any
representation issue that is properly litigable in this un-
fair labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB , 313 U.S. 146, 162 (1941). Accord-
ingly, we grant the Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation,
has been engaged in the manufacture of truck bodies at
its Allen, Kentucky facilities.
During the 12-month period preceding is suance of the
complaint, the Respondent, in conducting its operations
described above, sold and shipped goods valued in ex-
cess of $50,000 to points outside the Commo nwealth of
Kentucky.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and

2 In opposing the Motion for Summary Judgment, the Respondent
cites various changed circumstances that have occurred since the 1996
election, including: (1) substantial employee, supervisory, and manage-
rial turnover in the unit; (2) changes in ownership; (3) relocation to
another facility that is approximately 4 miles from the previous facility
and is substantially different in size, layout, age and functionality; and
(4) substantial changes in employee benefit and incentive plans and
compensation. The Respondent asserts that these changes provide
“good reason to believe” that the Union no longer has majority support.
However, it is well established that, absent unusual circumstances, a
union’s majority status is irrebuttably presumed to continue during the
year following the union’s certification, and that the kinds of changes
cited by the Respondent do not constitute unusual circumstances. Ray
Brooks v. NLRB , 348 U.S. 98 (1954); and Action Automotive, 284
NLRB 251 (1987), enfd. 853 F.2d 433 (6th Cir. 1988), cert. denied 488
U.S. 1041 (1989). The court decisions cited by the Respondent requir-
ing consideration of changed circumstances in determining the propri-
ety of a remedial bargaining order under NLRB v. Gissel Packing Co.,
395 U.S. 575 (1969), are clearly distinguishable as they do not involve
a Board certification. Finally, the Respondent does not contend that the
changed circumstances have rendered the certified unit inappropriate.
In any event, even accepting as true the Respondent’s description of the
postelection changes, we find that they are insufficient to warrant reex-
amination of the certified unit. See Atlantic Intern ational Corp., 246
NLRB 291, 295–296 (1979), enfd. 664 F.2d 1231 (4th Cir. 1981); and
South Pacific Furniture, 241 NLRB 488 (1979), enfd. 627 F.2d 173
(9th Cir. 1980). See also Super K-Mart, 322 NLRB 583 (1996) (unilat -
eral changes following election do not constitute a basis to reconsider
certification).
Chairman Hurtgen does not agree that the postelection changes, if
true, would not warrant reexamin ation of the appropriateness of the
unit. However, he notes that the proffered evidence is conclusionary
and does not specifically address the issue of appropriateness of unit.
In these circumstances, Chairman Hurtgen agrees that a hearing is not
necessary.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2
(7) of the Act, and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.3
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held October 11, 1996, the Un-
ion was certified on March 9, 2001, as the exclusive col-
lective-bargaining representative of the employees in the
following appropriate unit:

All full-time and regular part -time production and
maintenance employees employed by [Respondent] at
its main and “Page” facilities located at 5165 Kentucky
Route 1428, Allen, Kentucky, including, but not lim-
ited to crew leaders, miscellaneous labor, welders, jani-
tors, power take-off, truck drivers, electricians, me-
chanics, aluminum wash, quality control inspectors,
painters, clean-up/production, forklift operators, outside
clean-up, small parts, special equipment operators, fit-
ters, tackers, press/shear, trailer assembly, parts runner,
parts window clerk, receiving clerk, shipping clerk,
shipout clerk and UPS shipping clerk, but excluding all
sales persons, managerial employees, office clerical
employees and all professional employees, guards and
supervisors as defined in the Act.

The Union continues to be the exclusive representative un-
der Section 9(a) of the Act.
B. Refusal to Bargain
About March 12, 2001, the Union, in writing, re-
quested the Respondent to bargain, and about March 19,
2001, the Respondent, in writing, refused. We find that
this refusal constitutes an unlawful refusal to bargain in
violation of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing on and after March 19, 2001, to bargain
with the Union as the exclusive collective-bargaining
representative of employees in the appropriate unit, the
Respondent has engaged in unfair labor practices affect-
ing 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 reques t with the Union, and, if an

3 The Respondent’s answer denies information sufficient to form a
belief as to the truth of the complaint allegation that the Union is a
labor organization within the meaning of Sec. 2(5) of the Act. This
denial, however, does not raise any issue warranting a hearing. The
Respondent stipulated in the underlying representation proceeding that
the Union is a Sec. 2(5) labor organization, and the Respondent did not
contest the Union’s labor organization status in the representation case.
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 the law, we shall construe the initial period of the cer-
tification 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, R & S Truck Body Company, Inc., Allen,
Kentucky, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain with National Confe rence of
Firemen and Oilers, Service Employees International
Union, AFL–CIO, as the exclusive bargaining represen-
tative of the employees in the bargaining unit.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of the employees in the following appro-
priate unit on terms and conditions of employment and, if
an understanding is reached, embody the understanding
in a signed agreement:

All full-time and regular part -time production and
maintenance employees employed by [Respondent] at
its main and “Page” facilities located at 5165 Kentucky
Route 1428, Allen, Kentucky, including, but not lim-
ited to crew leaders, miscellaneous labor, welders, jani-
tors, power take-off, truck drivers, electricians, me-
chanics, aluminum wash, quality control inspectors,
painters, clean-up/production, forklift operators, outside
clean-up, small parts, special equipment operators, fit-
ters, tackers, press/shear, trailer assembly, parts runner,
parts window clerk, receiving clerk, shipping clerk,
shipout clerk and UPS shipping clerk, but excluding all
sales persons, managerial employees, office clerical
employees and all professional employees, guards and
supervisors as defined in the Act.

(b) Within 14 days after service by the Region, post at
its facility in Allen, Kentucky, copies of the attached
R & S TRUCK BODY CO. 3
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 9,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since March 19, 2001.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re -
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. June 22, 2001

Peter J. Hurtgen, Chairman

Wilma B. Liebman, Member

John C. Truesdale, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment 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

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT refuse to bargain with National Confe rence of
Firemen and Oilers, Service Employees In ternational Un-
ion, AFL–CIO, as the exclusive representative of the em-
ployees in the bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise 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 bar-
gaining unit:

All full-time and regular part -time production and
maintenance employees employed by us at our main
and “Page” facilities located at 5165 Kentucky Route
1428, Allen, Kentucky, including, but not limited to
crew leaders, miscellaneous labor, welders, janitors,
power take-off, truck drivers, electricians, mechanics,
aluminum wash, quality control inspectors, painters,
clean-up/production, forklift operators, outside clean-
up, small parts, special equipment operators, fitters,
tackers, press/shear, trailer assembly, parts runner, parts
window clerk, receiving clerk, shipping clerk, shipout
clerk and UPS shipping clerk, but excluding all sales
persons, managerial employees, office clerical employ-
ees and all professional employees, guards and superv i-
sors as defined in the Act.
R & S TRUCK BODY COMPANY, INC.