Matlock Truck Body and Trailer Corp.

National Labor Relations Board - Board Decisions

Apr 24, 1973

203 N.L.R.B. 110 (N.L.R.B. 1973)

110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Matlock Truck Body and Trailer Corp. and District
Lodge 155 of the International Association of Ma-
chinists and Aerospace Workers , AFL-CIO. Case
26-CA-4579
April 24, 1973
DECISION AND ORDER
BY MEMBERS FANNING. KENNEDY, AND PENELLO
Upon a charge filed on December 11, 1972, by
District Lodge 155 of the International Association of
Machinists and Aerospace Workers, AFL-CIO, here-
in called the Union, and duly served on Matlock
Truck Body and Trailer Corp., herein called the Re-
spondent, the General Counsel of the National Labor
Relations Board, by the Acting Regional Director for
Region 26, issued a complaint on December 29, 1972,
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 Na-
tional 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 August 25, 1972,
following a Board election in Case 26-RC-3758 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; t and that, commencing
on or about November 27, 1972, and at all times
thereafter, Respondent has refused, and continues 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 January 8, 1973, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint.
On January 17, 1973, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on January 23,
'Official notice is taken of the record in the representation proceeding,
Case 26-RC-3758,,as the term "record" is defined in Secs. 102 68 and
102.69(f) of the Board 's Rules and Regulations , Series 8, as amended. Ac-
cordingly , we deny the Respondent's request that the affidavits of
Respondent's employees taken by the Board agent be made a part of the
records in Case 26-RC-3758 or Case 26-CA-14579 See LTV Electrosystems,
Inc, 166 NLRB 938, enfd . 388 F.2d 683 (C.A. 4, 1968); Golden Age Beverage
Co, 167 NLRB 151, enfd. 415 F.2d 26 (C A 5,1969); Intertype Co v Penello,
269 F Supp. 573 (D C. Va., 1967); Follett Corp, 164 NLRB 378, enfd. 397
F.2d 91 (C.A. 7, 1968); Sec 9(d) of the NLRA. The response to the Notice
To Show Cause, called answer of the Respondent , infra, filed in Case 26-
Ca-4579 is part of the pleadings in that case and therefore the affidavits
attached thereto are considered to be a part of the record therein
1973, the Board issued an order transferring the pro-
ceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent there-
after filed a response to Notice To Show Cause, called
answer of Respondent, in which it incorporated by
reference its earlier answer of Respondent to Motion
for Summary Judgment, with attached affidavits.
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
In its answer to the complaint and response to the
Notice to Show Cause, the Respondent attacks the
validity of the election which resulted in the certifica-
tion of the Union and requests a hearing on the issues
raised by the Board's allegedly improper sustaining of
the challenges to three ballots and refusing to allow an
eligible employee to vote. The General Counsel con-
tends that the Respondent is attempting to relitigate
the same issues which the Board had previously de-
termined in the representation case, 26-RC-3758, and
which do not require a hearing.
The record in Case 26-RC-3758, in pertinent part,
reflects that in its Decision, Order, and Direction of
Second Election issued on June 22, 1971 (191 NLRB
407), the Board set aside the first election held pur-
suant to the Regional Director's Decision and Direc-
tion of Election of June 9, 1970, and directed a second
election in the unit found to be appropriate by the
Regional Director.' The tally of ballots issued after
the election held on July 13, 1972, disclosed that of
approximately 136 eligible voters, 59 cast votes for,
and 55' against , the Union, with 6 challenged. The
Respondent filed timely objections to conduct affect-
ing the results of the election. After investigation, dur-
ing which all parties were afforded the opportunity to
submit evidence bearing on the issue, the Regional
Director issued, on August 25, 1972, his Second Sup-
plemental Decision and Certification of Representa-
tive in which he sustained the challenges to four of the
six challenged ballots, overruled the Respondent's ob-
jections in their entirety, and certified the Union.
Thereafter, the Respondent filed a timely petition for
review of the Regional Director's rulings sustaining
the challenges to three of the four challenged ballots
and overruling the objections with respect to the at-
tempt by employee Terry, who was not on the eligibil-
ity list, to vote and with respect to alleged coercive
2In its answer, the Respondent admits the appropriate unit
203 NLRB No. 14
MATLOCK TRUCK BODY & TRAILER CORP. I l l
remarks made by union proponents. On October 17,
1972, the Board denied the Respondent's petition as
it raised no substantial issues warranting review.
In its response to the Notice To Show Cause, the
Respondent now requests that it be given the opportu-
nity at a hearing to furnish proof and submit testimo-
ny in support of the issues raised by the three
challenged ballots and the attempt of employee Terry
to vote. The Respondent had the opportunity to liti-
gate and did litigate these issues in the underlying
representation case. Where, as found herein, the is-
sues were not substantial and did not warrant review,
an evidentiary hearing is not required or warranted.3
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.4
All issues raised by the Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and the 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 the Respondent has not raised any issue
which is properly litigable in this unfair labor practice
proceeding.5 We shall, accordingly, grant the Motion
for Summary Judgment.6
On the basis of the entire record, the Board makes
the following:
to points outside the State of Tennessee, and during
the same period, purchased and received goods val-
ued in excess of $50,000 directly from points located
outside the State of Tennessee.
We find, on the basis of the foregoing, that Respon-
dent 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
District Lodge 155 of the International Association
of Machinists and Aerospace Workers, AFL-CIO, is
a labor organization within the meaning of Section
2(5) of the Act.
III. UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent con-
stitute a unit appropriate for collective -bargaining
purposes within the meaning of Section 9(b) of the
Act:
All production and maintenance employees,
including working foremen , parts clerks, material
handling employees , inspectors , truck drivers
and janitors employed by the Respondent at its
1070 Visco Drive , Nashville, Tennessee , location,
excluding all office clerical employees , salesmen,
technical and professional employees, guards
and supervisors as defined in the Act.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a corporation doing business in
Nashville, Tennessee, where it is engaged in the man-
ufacture, sale, and service of truck bodies and in the
sale and service of truck trailers. During the past 12
months, Respondent, in the course and conduct of its
business operations at Nashville, Tennessee, sold and
shipped products valued in excess of $50,000 directly
3 Stan Schulte Electric, Inc, 197 NLRB No 88.
See Pittsburgh Plate Glass Co. v. N L R B., 313 U.S. 146, 162 (1941); Rules
and Regulations of the Board , Secs. 102.67(f) and 102 69(c)
5 In its answer to the complaint, the Respondent denies that it is an em-
ployer engaged in commerce within the meaning of Sec. 2 (7) of the Act and
assumes that the Union is a labor organization within the meaning of Sec
2(5) of the Act. These matters were litigated and determined in representation
Case 26-RC-3758 and may not be relitigated herein.
6 In so doing , we have also considered the affidavits attached to the answer
of Respondent herein
2. The certification
On July 13, 1972, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional Di-
rector for Region 26, designated the Union as their
representative 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 August 25, 1972, and the Union contin-
ues 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 31, 1972, and at
all times thereafter, the Union has requested the Re-
spondent to bargain collectively with it as the exclu-
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sive collective-bargaining representative of all the em-
ployees in the above -described unit . Commencing on
or about November 27, 1972, 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 collec-
tive bargaining of all employees in said unit.
Accordingly, we find that the Respondent has,
since November 27, 1972, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit , and that , by such refusal , Respondent
has engaged in and is engaging in unfair labor prac-
tices 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
described in section I, above , have a close , intimate,
and substantial relationship to trade , traffic , and com-
merce 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, bargain collectively with the Union as the
exclusive representative of all employees in the appro-
priate unit , and, if an understanding is reached, em-
body such understanding in a signed agreement.
In order to insure that the employees in the appro-
priate unit will be accorded the services of their select-
ed bargaining agent for the period provided by law,
we shall construe the initial period of certification as
beginning on the date Respondent commences to bar-
gain in good faith with the Union as the recognized
bargaining representative in the appropriate unit. See
Mar-Jac Poultry Company, Inc., 136 NLRB 785; Com-
merce Company d/b/a/ Lamar Hotel, 140 NLRB 226,
229, enfd . 328 F .2d 600 (C.A. 5), cert . denied 379 U.S.
817; Burnett Construction Company, 149 NLRB 1419,
1421, enfd . 350 F.2d 57 (C.A. 10).
The Board , upon the basis of the foregoing facts
and the entire record , makes the following:
CONCLUSIONS OF LAW
1. Matlock Truck Body and Trailer Corp. is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. District Lodge 155 of the International Associa-
tion of Machinists and Aerospace Workers, AFL-
CIO, is a labor organization within the meaning of
Section 2 (5) of the Act.
3. All production and maintenance employees, in-
cluding working foremen , parts clerks , material han-
dling employees , inspectors , truck drivers and janitors
employed by the Respondent at its 1070 Visco Drive,
Nashville , Tennessee , location , excluding all office
clerical employees , salesmen , technical and profes-
sional employees, guards and supervisors as defined
in the Act , constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of
Section 9(b) of the Act.
4. Since August 25, 1972, 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
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about November 27, 1972, 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 Respon-
dent 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
interfering with , restraining, and coercing , employees
in the exercise of the rights guaranteed them in Sec-
tion 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
meaning 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 Rela-
tions Board hereby orders that Respondent , Matlock
Truck Body and Trailer Corp., Nashville , Tennessee,
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 condi-
tions of employment with District Lodge 155 of the
International Association of Machinists and Aero-
space Workers , AFL-CIO, as the exclusive bargain-
ing representative of its employees in the following
appropriate unit:
All production and maintenance employees,
including working foremen, parts clerks , material
handling employees , inspectors , truck drivers
MATLOCK TRUCK BODY & TRAILER CORP. 113
and janitors employed by the Respondent at its
1070 Visco Drive, Nashville, Tennessee, location,
excluding all office clerical employees, salesmen,
technical and 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.
(b) Post at its Nashville, Tennessee, location copies
of the attached notice marked "Appendix." Copies
of said notice, on forms provided by the Regional
Director for Region 26, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent 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 26, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
terms and conditions of employment with Dis-
trict Lodge 155 of the International Association
of Machinists and Aerospace Workers, AFL-
CIO, as the exclusive representative of the em-
ployees in the bargaining unit described below.
WE WILL NOT in any like or related manner in-
terfere 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 understanding in a signed agreement. The
bargaining unit is:
All production and maintenance employees
including working foremen, parts clerks, mate-
rial handling employees, inspectors, truck driv-
ers and janitors employed by the Respondent
at its 1070 Visco Drive, Nashville, Tennessee,
location , excluding all office clerical employ-
ees, salesmen , technical and professional em-
ployees, guards and supervisors as defined in
the Act.
MATLOCK TRUCK BODY
AND TRAILER CORP.
(Employer)
7 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 con-
cerning rates of pay, wages , hours, and other
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Clifford Davis Federal Building,
Room 746, 167 North Main Street, Memphis, Tennes-
see 38103, Telephone 901-534-3161.