U-Haul Company of Nevada

National Labor Relations Board - Board Decisions

Nov 30, 2005

345 N.L.R.B. 1301 (N.L.R.B. 2005)

U-HAUL CO. OF NEVADA
345 NLRB No. 118
1301
U-Haul Company of Nevada, Inc. and International
Association of Machinists and Aerospace Work-
ers, Local Lodge 845, AFL–CIO. Cases 28–CA–
19441 and 28–CA–20001
November 30, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
This is a refusal-to-bargain case in which the Respon-
dent is contesting the Union’s certification as bargaining
representative in the underlying representation proceed-
ing. Pursuant to a charge filed on April 27, 2004, in
Case 28–CA–19441, and a charge filed on October 25,
2004, in Case 28–CA–20001,1 the General Counsel is-
sued the consolidated complaint (the complaint) on De-
cember 17, 2004, alleging that the Respondent has vio-
lated Section 8(a)(5) and (1) of the Act by refusing the
Union’s request to bargain following the Union’s certifi-
cation in Case 28–RC–6159.2 (Official notice is taken of
the “record” 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, with affirmative defenses,
admitting in part and denying in part the allegations in
the complaint.
On February 11, 2005, the General Counsel filed a
Motion for Summary Judgment. On February 25, 2005,
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,
and the General Counsel filed a brief in reply to the Re-
spondent’s response.
Ruling on Motion for Summary Judgment
The Respondent admits its refusal to bargain but con-
tests the validity of the certification based on its objec-
tions to conduct alleged to have affected the results of the
election in the representation proceeding. In its answer
and response to the Notice to Show Cause, the Respon-
dent also raises a number of other arguments in opposi-
tion to the General Counsel’s motion, including that: (1)

1 The Respondent in its answer to the complaint neither admits nor
denies the filing and service dates of the charges. Copies of the charges
and affidavits of service are attached as Exhs. 19–22 to the General
Counsel’s motion and the Respondent has not contested the authenticity
of these documents in its response to the Notice to Show Cause. Ac-
cordingly, we find that the Respondent has not raised any issue regard-
ing filing and service of the charges warranting a hearing. See, e.g.,
Shore Club Condominium Assn., 340 NLRB 700 fn. 1 (2003); Correc-
tions Corp. of America, 330 NLRB 663 (2000), enfd. 234 F.3d 1321
(D.C. Cir. 2000).
2 On October 13, 2004, the Respondent filed a motion to reopen the
record in Case 28–RC–6159. By unpublished Order dated June 6,
2005, the Board denied the Respondent’s motion.
the certified unit may no longer be appropriate in light of
the closure of its Henderson, Nevada facility, which is
one of two facilities expressly included in the certified
unit; (2) the unfair labor practices alleged in the com-
plaint are barred by Section 10(b) of the Act; and (3) the
General Counsel was required to consolidate this case for
hearing with Cases 28–CA–18575, et al., in accordance
with the Board’s decisions in Peyton Packing Co., 129
NLRB 1358 (1961), and Jefferson Chemical Co., 200
NLRB 992 (1972).
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-
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.
With respect to the Respondent’s contention that the
certified unit may no longer be appropriate, we find, ini-
tially, that the Respondent has failed to show that with
due diligence it could not have brought forth evidence
pertaining to the closure of the Henderson facility within
a reasonably short period of time after its implementa-
tion. The Respondent first brought this evidence to the
Board’s attention in its response to the Notice to Show
Cause, which was filed on March 11, 2005, despite the
fact that the closure of the facility allegedly occurred in
December 2003, approximately 2 months before the
Board issued its certification of representative in Case
28–RC–6159. In these circumstances, we find that the
alleged evidence should not be considered newly discov-
ered or previously unavailable and does not constitute
special circumstances warranting relitigation of issues
raised in the representation case.
In any event, even if the Respondent’s contentions in
this regard were timely raised, we would find no merit to
them. On September 30, 2005, Administrative Law
Judge John J. McCarrick issued a decision in Cases 28–
CA–18575, et al., finding, inter alia, that the Respondent
had closed its Henderson facility following the election
for discriminatory reasons and terminated most of the
unit employees in violation of Section 8(a)(3) of the Act.
The judge also found that the Respondent violated Sec-
tion 8(a)(5) by closing the Henderson facility without
notice to, or bargaining with, the Union. Based on these
and other unfair labor practices alleged in the consoli-
dated complaint in Cases 28–CA–18575, et al., and
found by the judge, the judge issued a recommended
order requiring the Respondent, inter alia, to reestablish
the Henderson facility, offer reinstatement to unit em-
ployees formerly employed there, and bargain with the
Union in the two-facility unit, based on a preelection
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1302
card majority.3 Moreover, regardless of whether the Re-
spondent will ultimately be required to restore operations
at the Henderson facility, it appears that the Respondent
has had, and continues to have, at a minimum, an obliga-
tion to bargain with the Union over the effects of its de-
cision to close the facility on unit employees formerly
employed there. See First National Maintenance Corp.
v. NLRB, 452 U.S. 666, 681–682 (1981). Accordingly,
the fact that the Henderson facility has closed does not
render the certified unit inappropriate or give rise to un-
usual circumstances justifying the Respondent’s refusal
to bargain. See Pony Express Courier Corp., 286 NLRB
1286, 1289–1290 (1987) (closure of two of four facilities
included in certified unit); Baldwin League of Independ-
ent Schools, 281 NLRB 981, 983 (1986) (closure of one
of three facilities included in certified unit). We there-
fore find that the Respondent has not raised any repre-
sentation issue that is properly litigable in this unfair
labor practice proceeding. See Pittsburgh Plate Glass
Co. v. NLRB, 313 U.S. 146, 162 (1941).
We also find no merit in the Respondent’s contention
that the complaint allegations should be barred as un-
timely. Neither the Respondent’s answer nor its re-
sponse presents any legal or factual basis for this de-
fense, and we note that the unfair labor practice charges
and complaint allegations are consistent with the time
provisions of Section 10(b) of the Act.
Finally, we reject the Respondent’s contention that the
General Counsel was required to consolidate this case for
hearing with Cases 28–CA–18575, et al., in accordance
with the Board’s decisions in Peyton Packing Co., supra,
and Jefferson Chemical Co., supra. Although not ac-
knowledged by the Respondent, the Board, in Service
Employees Local 87 (Cresleigh Management), 324
NLRB 774, 775 (1997), narrowly limited the application
of Peyton Packing and Jefferson Chemical to situations
where the General Counsel is attempting to twice litigate
the same act or conduct as a violation of different sec-
tions of the Act, or to relitigate the same charges in dif-
ferent cases. The Board stated:
[E]xcept in the specific circumstances presented in
Peyton Packing and Jefferson Chemical, where the
General Counsel has attempted to “twice litigate the
same act or conduct as a violation of different sections
of the Act,” NLRB v. Plaskolite, Inc., 309 F.2d 788, 790
(6th Cir. 1962) (emphasis in original), or to relitigate
the same charges in different cases, the Board has rec-
ognized that such a blanket rule in favor of consolida-
tion would improperly interfere with the General Coun-
sel’s discretion and, in some cases, could unduly delay

3 We express no opinion here regarding the merits of the consoli-
dated complaint allegations in Cases 28–CA–18575, et al.
the disposition of pending cases. [Citing Maremont
Corp., 249 NLRB 216, 217 (1980) and Harrison Steel
Castings, 255 NLRB 1426, 1427 (1981).]
Here, the General Counsel is not attempting to twice
litigate the same conduct as a violation of different sec-
tions of the Act or to relitigate the same charge in differ-
ent cases. As explained by the General Counsel, Cases
28–CA–18575, et al., are unfair labor practice cases in
which the General Counsel seeks a remedial Gissel4 bar-
gaining order, while the current matter is a test of certifi-
cation arising out of representation Case 29–RC–6159.
Accordingly, the decision to separately litigate the con-
duct alleged in the instant complaint is within the discre-
tion of the General Counsel. The discretion of the Gen-
eral Counsel will be upheld absent a showing of arbitrary
abuse. Service Employees Local 87, 324 NLRB at 776.5
Even where the General Counsel fails to consolidate
cases that the Board believes should have been consoli-
dated, the Board will not dismiss the complaint in the
absence of a showing of prejudice to the respondent. Id.
The Respondent has not shown an abuse of discretion or
prejudice.6
In sum, we find that the Respondent has not raised any
issue which is properly litigable in this unfair labor prac-
tice proceeding and, accordingly, we grant the Motion
for Summary Judgment.7
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times the Respondent, a Nevada corpo-
ration, with an office and place of business located at 989
South Boulder Highway, Henderson, Nevada (the Hen-
derson facility), and with an office and place of business
located at 1900 South Decatur Boulevard, Las Vegas,
Nevada (the Decatur facility), has been engaged in the
business of repairing rental vehicles and trailers.

4 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
5 Chairman Battista does not pass on the issue of whether, absent an
abuse of discretion, the Board is bound by the General Counsel’s deci-
sion concerning consolidation of cases. However, he agrees that the
decision here was appropriate.
6 Contrary to the Respondent, there is no risk of inconsistent adjudi-
cation arising from the fact that U-Haul of Nevada (UHN) is the only
named employer here, while the consolidated complaint in Cases 28–
CA–18575, et al., names UHN and U-Haul International, Inc. (UHI) as
a single employer. The question of whether UHN and UHI constitute a
single employer is not before us in this case, and we express no opinion
regarding that issue. We note, moreover, that the issue does not affect
our analysis or resolution of the refusal-to-bargain allegation in this
case, as the Respondent’s status as an employer of the unit employees
was established in the underlying representation case, and the Respon-
dent does not challenge that finding.
7 The Respondent’s request that the complaint be dismissed is there-
fore denied.
U-HAUL CO. OF NEVADA 1303
During the 12-month period ending April 27, 2004, the
Respondent, in conducting its operations described
above, derived gross revenues in excess of $500,000, and
purchased and received at the Decatur facility goods val-
ued in excess of $50,000 directly from points outside the
State of Nevada.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act and that the 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 May 7, 2003, the Union
was certified on February 9, 2004, as the exclusive col-
lective-bargaining representative of the employees in the
following appropriate unit:8
All full-time and regular part-time brake/tire specialists,
detail specialists, engine specialists, mechanic express
specialists, PM inspection specialists, pre/post inspec-
tion specialists, transmission specialists, vanbody spe-
cialists, mobile repair specialists, parts clerks, parts
specialists, transfer drivers, repair dispatch specialists,
schedulers, and senior clerks employed by the Respon-
dent at and out of its 1900 South Decatur Boulevard,
Las Vegas, Nevada and 989 South Boulder Highway,
Henderson, Nevada, repair facilities; excluding all
other employees, office clerical employees, profes-
sional 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
On or about March 19 and August 24, 2004, the Un-
ion, by letters, requested that the Respondent recognize
and bargain with it as the exclusive collective-bargaining
representative of the unit.
Since on or about March 19, 2004, the Respondent has
failed and refused to recognize and bargain with the Un-
ion. We find that this failure and refusal constitutes an
unlawful refusal to bargain in violation of Section 8(a)(5)
and (1) of the Act.
CONCLUSION OF LAW
By failing and refusing on and after March 19, 2004,
to recognize and bargain with the Union as the exclusive
collective-bargaining representative of employees in the

8 The Board’s certification of the Union inadvertently excluded the
classification of senior clerk. On June 24, 2004, the Union and counsel
for the Regional Director filed a joint motion, unopposed by the Re-
spondent, requesting correction of the unit description to include the
classification of senior clerk. The Board issued a correction on July 29,
2004.
appropriate unit, the Respondent 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 initial period of the certifi-
cation 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, U-Haul Company of Nevada, Inc., Hender-
son and Las Vegas, Nevada, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with International Association
of Machinists and Aerospace Workers, Local Lodge 845,
AFL–CIO, as the exclusive bargaining representative 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 brake/tire specialists,
detail specialists, engine specialists, mechanic express
specialists, PM inspection specialists, pre/post inspec-
tion specialists, transmission specialists, vanbody spe-
cialists, mobile repair specialists, parts clerks, parts
specialists, transfer drivers, repair dispatch specialists,
schedulers, and senior clerks employed by the Respon-
dent at and out of its 1900 South Decatur Boulevard,
Las Vegas, Nevada, and 989 South Boulder Highway,
Henderson, Nevada, repair facilities; excluding all
other employees, office clerical employees, profes-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1304
sional employees, guards and supervisors as defined in
the Act.
(b) Within 14 days after service by the Region, post at
its facilities in Henderson and Las Vegas, Nevada, copies
of the attached notice marked “Appendix.”9 Copies of
the notice, on forms provided by the Regional Director
for Region 28, after being signed by the Respondent’s
authorized representative, shall be posted by the Respon-
dent and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed either of the facilities involved in these proceed-
ings, the Respondent shall duplicate 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, 2004.
(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.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

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 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.”
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain with International As-
sociation of Machinists and Aerospace Workers, Local
Lodge 845, AFL–CIO, 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 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 brake/tire specialists,
detail specialists, engine specialists, mechanic express
specialists, PM inspection specialists, pre/post inspec-
tion specialists, transmission specialists, vanbody spe-
cialists, mobile repair specialists, parts clerks, parts
specialists, transfer drivers, repair dispatch specialists,
schedulers, and senior clerks employed by us at and out
of our 1900 South Decatur Boulevard, Las Vegas, Ne-
vada, and 989 South Boulder Highway, Henderson,
Nevada, repair facilities; excluding all other employees,
office clerical employees, professional employees,
guards and supervisors as defined in the Act.
U-HAUL COMPANY OF NEVADA, INC.