Evansville Auto Parts, Inc.

National Labor Relations Board - Board Decisions

May 1, 1975

217 N.L.R.B. 660 (N.L.R.B. 1975)

660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Evansville Auto Parts, Inc. andChauffeurs, Teamsters
and Helpers Local Union 215, a/w International
Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America. Case 25-CA-6721
May 1, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
granted. Respondent thereafter filed a response to no-
tice to show cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as' amended, the Na-
tional Labor Relations Board has delegated its au-
thority 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
Upon- a charge filed on November 22,- 1974, by
Chauffeurs, Teamsters and Helpers Local Union 215,
a/w International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, herein
called the Union, and duly served on Evansville Auto
Parts, Inc., herein called the Respondent, the General
Counsel of the National Labor Relations Board, by the
Regional Director for Region 25, issued a complaint on
December 5, 1974, 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 com-
plaint alleges in substance that on October 3, 1974,
following a Board election in Case 25-RC-5652 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; 1 and that, commencing
on or about October 3, 1974, and since particularly on
October 17, 1974, and at all times thereafter, Respond-
ent has refused, and continues to date to refuse, to
bargain collectively with the Union as the exclusive
bargaining representative, although the Union has re-
quested and is requesting it to do so. On December 16,
1974, Respondent filed its answer to the complaint
admitting in part, and denying in part, the allegations
in the complaint.
On January 6, 1975, counsel for the General Counsel
filed directly with the Board a motion for summary
judgment. Subsequently, on January 27, 1975, 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
Official notice is taken of the record in the representation proceeding,
Case 25-RC-5652, as the term "record" is defined in Sees. 102.68 and
102.69(g) of the Board's Rules and Regulations, Series 8, as amended See
LTVElectrosystems, Inc, 166 NLRB 938 (1967), enfd 388 F 2d 683 (C.A
4, 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 ,
1957), Follett Corp, 164 NLRB 378 (1967), enfd 397 F 2d 91 (C A 7,
1968), Sec. 9(d) of the NLRA.
In its answer to the complaint Respondent admits
the election and certification of the Union but denies its
status as majority representative of the employees in
the appropriate collective-bargaining unit. In its re-
sponse to the notice to show cause Respondent con-
tends that its objections to the election should have
been sustained and a hearing held on the issues raised
in its exceptions to the Regional Director's Report on
Objections to Conduct Affecting Results of Election
and Recommendation to the Board. Respondent fur-
ther contends that the failure of the Board to apply the
same standards to union conduct as are applied to its
conduct in determining whether to set aside an election
or to hold a hearing on objections as required by
N.L.R.B. v. Savair Mfg. Co-, 414 U.S. 270 (1973), de-
nies Respondent due process and equal protection of
the laws.
Our review of the record in this case reveals that
pursuant to a stipulation for certification upon consent
election in Case 25-RC-5652 an election was held on
May 8, 1974, in which nine votes were cast for the
Union and seven against; there was one challenged
ballot. Respondent filed timely objections alleging, in
substance, that the Union told employees that Re-
spondent would discharge those employees who were
in favor of and voted for the Union; if a strike occurred,
no employees could work and those employees who did
not strike would have to look for other jobs; and, if the
Union won the election, employees would not have to
pay union fees and dues, there would be an automatic
wage increase, and the Union could tell Respondent
who would be supervisors.
Following an investigation, the Regional Director
for Region 25, on July 22, 1974, issued a Report on
Objections to Conduct Affecting Results of Election
and Recommendation to the Board in which he recom-
mended that the objections, including an additional
objection concerning a threatening phone call, be over-
ruled in their entirety and that the appropriate certifi-
cation of representative issue. Respondent thereafter
filed exceptions with the Board alleging that the elec-
tion should be set aside on its objections or that a
hearing be held thereon because they raised substantial
and material issues of fact. Respondent also alleged
217 NLRB No. 101
EVANSVILLE AUTO PARTS, INC.
that the Regional Director failed to consider the com-
bined effect of the objectionable conduct and that a
dual standard had been applied in consideration of its
objections contrary to the decision in N.L. R.B. v. Sa-
vairMfg. Co., 414 U.S. 270 (1973). On October 3, 1974,
the Board issued a Decision and Certification of Repre-
sentative in which it , after reviewing the record in light
of the exceptions and briefs , adopted the findings and
recommendations of the Regional Director and certi-
fied the Union.
It thus appears from the foregoing review that Re-
spondent 's contentions raised in this proceeding have
been raised and determined in the underlying represen-
tation case . Further, Respondent previously requested
a hearing in its exceptions to the Regional Director's
report on objections ; in adopting the findings of the
Regional Director we necessarily found no issues war-
ranting a hearing .' Finally, Respondent 's specific con-
tentions with respect to a denial of due process and
equal protection of the laws are without merit as its
objections and evidence in support thereof were consid-
ered below and do not support the Respondent 's consti-
tutional contentions.
It is well settled that in the absence of newly discov-
ered or previously unavailable evidence or special cir-
cumstances 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.3
All issues raised by the Respondent in this proceed-
ing were or could have been litigated in the prior repre-
sentation proceeding , and the Respondent does not of-
fer 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
the Respondent has not raised any issue which is prop-
erly litigable in this unfair labor practice proceeding.
We shall, accordingly , grant the motion for summary
judgment,' and deny the Respondent 's motion that
the complaint be dismissed.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent, an Indiana corporation at all times
material herein, has maintained its principal office and
place of business at its facility in Evansville, Indiana,
where it is engaged in the manufacture, sale, and distri-
bution of industrial and auto engine parts, and related
products, as well as the business of repairing and re-
661
building industrial and auto engines and related ser-
vices. During the last 12 months, a representative
period, Respondent, in the course and conduct of its
business operations, purchased, transferred, and deliv-
ered to its facility goods valued in excess of $50,000
which were transported to said facility directly from
points outside of Indiana. During the same period, Re-
spondent in the course and conduct of its business oper-
ations sold and distributed products, the gross value of
which exceeded $500,000, and manufactured, sold, and
shipped directly to points outside the State of Indiana
goods valued in excess of $50,000.
We find, on the basis of the foregoing, that Respond-
ent 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 effectu-
ate the policies of the Act to assert jurisdiction herein.
II THE LABOR ORGANIZATION INVOLVED
Chauffeurs, Teamsters and Helpers Local Union
215, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and 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
1. The unit
The following employees of the Respondent consti-
tute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All counter men, all machinists, all drivers, all
mechanics, all salesmen and general laborers em-
ployed at the Employer's Evansville, Indiana,
facility; but excluding all office clerical employees,
all professional employees, all guards and supervi-
sors as defined in the Act and all other employees.
2. The certification
On May 8, 1974, a majority of the employees of
Respondent in said unit, in a secret ballot election con-
2 Raub Supply Company, 215 NLRB No. 75 (1974); Heavenly Valley Ski
Area, 215 NLRB No 129 (1974)
3 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941),
Rules and Regulations of the Board, Sees. 102 67(t) and 102.69(c).
4 In view of the result reached herein, we find it unnecessary to rule on
the General Counsel's request to strike Respondent's denial of par 5(c) of
the complaint, concerning the Union's representative status
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ducted under the supervision of the Regional -Director
for Region 25, designated the Union as their represen-
tative for the purpose of collective bargaining with the
Respondent . The Union was certified as the collective-
bargaining representative of the employees in said unit
on October 3, 1974, 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 October 3, 1974, and at all
times thereafter, the Union has requested the Respond-
ent to bargain collectively with it as the exclusive col-
lective-bargaining representative of all the employees in
the above-described unit. Commencing on or about
October 3, 1974 , and continuing at all times thereafter
to date, the Respondent has refused , and continues to
refuse , to recognize and bargain with the Union as the
exclusive representative for collective bargaining of all
employees in said unit.
Accordingly, we find that the Respondent has, since
October 3, 1974, 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 , Respondent 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 operations de-
scribed 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 commerce.
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, bar-
gain collectively with the Union as the exclusive repre-
sentative of all employees in the appropriate unit, and,
if an understanding is reached, embody such under-
standing in a signed agreement.
In order to insure that the employees in the appropri-
ate unit will be accorded the services of their selected
bargaining agent for the period provided by law, we
shall construe the initial period of certification as begin-
ning on the date Respondent commences to bargain in
good faith with the Union as the recognized bargaining
representative in the appropriate unit . See Mar-Jac
Poultry Company, Inc., 136 NLRB 785 (1962); Com-
merce 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 Com-
pany, 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. Evansville Auto Parts, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Chauffeurs, Teamsters and Helpers Local Union
215, a/w International Brotherhood of Teamsters
Chauffeurs , Warehousemen and Helpers of America, is
a labor organization within the meaning of Section 2(5)
of the Act.
3. All counter men, all machinists , all drivers, all
mechanics , all salesmen and general laborers employed
at the Employer 's Evansville, Indiana, facility; but ex-
cluding all office clerical employees , all professional
employees , `all guards and supervisors as defined in the
Act and all other employees constitute a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since October 3, 1974, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the afore-
said appropriate unit for the purpose of collective bar-
gaining within the meaning of Section 9(a) of the Act.
5. By refusing on or about October 3, 1974, and at
all times thereafter , to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Respond-
ent 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 , Respondent
has interfered with , restrained , and coerced, and is in-
terfering with, restraining , and coercing , employees in
the exercise of the rights guaranteed to them in Section
7 of the Act, and thereby has engaged in and is engag-
ing 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 meaning
of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act , as amended, the National Labor Relations
Board hereby orders that Respondent , Evansville Auto
EVANSVILLE AUTO PARTS, INC.
Parts, Inc., Evansville , Indiana, 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 Chauffeurs, Teamsters and Help-
ers Local Union 215, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, as the exclusive bargaining representative of
its employees in the following appropriate unit:
All counter men, all machinists , all drivers, all
mechanics , all salesmen and general laborers em-
ployed at the Employer's Evansville, Indiana,
facility; but excluding all office clerical employees,
all professional employees, all guards and supervi-
sors as defined in the Act and all other employees.
(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 la-
bor organization as the exclusive representative of all
employees in the aforesaid appropriate unit with re-
spect 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.
(b) Post at its Evansville, Indiana, facility copies of
the attached notice marked "Appendix."5 Copies of
said notice, on forms-provided by the Regional Direc-
tor for Region 25, after being duly signed by Respon-
dent's representative, 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
5 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."
663
by Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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 con-
cerning rates of pay, wages, hours, and other terms
and conditions of employment with Chauffeurs,
Teamsters and Helpers Local Union 215, a/w In-
ternational Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and 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 inter-
fere 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 representative 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 under-
standing in a, signed agreement. The bargaining
unit' is:
All counter men, all machinists, all drivers,
all mechanics, all salesmen and general laborers
employed at the Employer's Evansville, In-
diana, facility; but excluding all office clerical
employees, all professional employees, all
guards and supervisors as defined in the Act and
all other employees.
EVANSVILLE AUTO PARTS, INC