APL Logistics, Inc.

National Labor Relations Board - Board Decisions

May 24, 2004

341 N.L.R.B. 994 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 994
APL Logistics, Inc. and International Chemical
Workers Union Council of the UFCW, AFL–
CIO–CLC. Case 9–CA–40905
May 24, 2004
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 and an amended charge filed
on February 24 and March 17, 2004, respectively, the
General Counsel issued the complaint on March 19,
2004, alleging that the Respondent has violated Section
8(a)(5) and (1) of the Act by refusing the Union’s request
to bargain following the Union’s certification in Case 9–
RC–17821. (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 and a first amended answer admitting in
part and denying in part the allegations in the complaint.
On April 6, 2004, the General Counsel filed a Motion
for Summary Judgment and Memorandum in Support.
On April 9, 2004, 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
The Respondent admits its refusal to bargain, but con-
tests the validity of the certification on the basis of its
objections in the representation proceeding.
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding. In its answer and response to the Notice
to Show Cause, the Respondent urges the Board to order
a hearing to consider “newly discovered and previously
unavailable evidence” pertaining to its Objection 1,
which alleged that the Union, by its agents, threatened
employees in order to coerce them to vote for the Union.
The alleged “newly discovered evidence” which the Re-
spondent seeks to offer is testimony presented by Mi-
chelle Gehm, the Union’s election observer, in a pro-
ceeding before another administrative agency.
The Respondent contends that this testimony establishes,
contrary to the decision of the hearing officer in the rep-
resentation proceeding, that Gehm was acting as an agent
of the Union when she allegedly made threatening state-
ments that were the subject of the Respondent’s Objec-
tion 1.
We find no merit in the Respondent’s contention. The
proffered evidence is not newly discovered and previ-
ously unavailable, nor would such evidence, if adduced,
establish special circumstances. Newly discovered evi-
dence is evidence of facts in existence at the time of the
hearing which could not be discovered by reasonable
diligence.1 In addition, in order to warrant a further
hearing, the newly discovered evidence must be such that
if adduced and credited it would require a different re-
sult. See Section 102.48(d)(1) of the Board’s Rules and
Regulations.
The Respondent has offered nothing beyond its bare
assertion to establish that the proffered evidence is newly
discovered and previously unavailable. It does not state
when Gehm’s testimony was given; when the testimony
was discovered; or why, through the exercise of reason-
able diligence, it could not have discovered the testimony
earlier. Moreover, Gehm’s testimony presumably con-
cerns facts that were in existence at the time of the repre-
sentation hearing.2 The issue of Gehm’s agency status
was fully litigated at the hearing, and the Respondent has
not shown why it could not have developed the same
facts at that time. Thus, the Respondent has not shown
that it has “newly discovered evidence” in the sense that
such evidence could not have been uncovered with rea-
sonable diligence during the hearing and offered into
evidence.
Finally, in overruling the Respondent’s Objection 1,
we adopted the hearing officer’s credibility based finding
that Gehm did not make the threatening statements that
were the subject of the objection.3 Accordingly, even
assuming the proffered evidence is newly discovered, the
Respondent has failed to show that it would require a
different result.
We therefore find that the Respondent has not raised
any representation issue that is properly litigable in this
unfair labor practice proceeding. See Pittsburgh Plate

1 Seder Foods Corp., 286 NLRB 215, 216 (1987); NLRB v. Jacob E.
Decker & Sons, 569 F.2d 357, 363–364 (5th Cir. 1978) (“facts imply-
ing reasonable diligence must be provided” by the party alleging evi-
dence is newly discovered).
2 To the extent that Gehm’s testimony pertains to facts arising after
the hearing, it does not constitute newly discovered evidence. Machin-
ists Lodge 91 (United Technologies), 298 NLRB 325 fn. 1 (1990), enfd.
934 F.2d 1288 (2d Cir. 1991).
3 Chairman Battista and Member Schaumber relied solely on this
finding in overruling Objection 1. In addition to the finding that the
allegedly objectionable conduct had not occurred, Member Liebman
also relied on the hearing officer’s findings that Gehm was not an agent
of the Union and that, even if the alleged conduct occurred, it was not
objectionable.
341 NLRB No. 132
APL LOGISTICS, INC. 995
Glass v. NLRB, 313 U.S. 146, 162 (1941). Accordingly,
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 business of warehousing and
providing logistical services from its Shepherdsville,
Kentucky facility.
During the 12-month period preceding issuance of the
complaint, the Respondent, in conducting its operations
described above, performed services valued in excess of
$50,000 for Dow Corning, an enterprise located within
the Commonwealth of Kentucky, which is directly en-
gaged in interstate commerce.
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 August 14, 2003, the Un-
ion was certified on January 7, 2004,4 as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit:

All full-time and regular part-time warehousing em-
ployees employed by the Employer at its Shepherds-
ville, Kentucky facility, but excluding all office clerical
employees, all employees employed by temporary
agencies, all professional employees, administrative as-
sistants, and 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
Since about January 28, 2004, the Respondent has
failed and refused to recognize and bargain with the Un-
ion as the employees’ exclusive collective-bargaining
representative.5 We find that the Respondent has thereby

4 The Respondent’s answer denies that a representation election was
held on August 14, 2003, and that the Board certified the Union on
January 7, 2004. We find that neither of these denials warrants a hear-
ing as uncontroverted record evidence attached to the General Coun-
sel’s motion establishes the allegations as to these matters.
5 The Respondent’s answer denies the complaint allegation that
about January 28 and February 11, 2004, the Union, in writing, re-
quested the Respondent to recognize and bargain with it. The General
Counsel has not attached a copy of the Union’s demand letters to the
Motion for Summary Judgment. We find, however, that the Respon-
unlawfully refused to bargain in violation of Section
8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By failing and refusing on and after January 28, 2004,
to bargain with the Union as the exclusive collective-
bargaining representative of employees in the appropriate
unit, the Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(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 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, APL Logistics, Inc., Shepherdsville, Ken-
tucky, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with International Chemical
Workers Union Council of the UFCW, AFL–CIO–CLC,
as the exclusive bargaining representative of the employ-
ees 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:

dent’s denial raises no issue warranting a hearing. See University Park
Living Center, 328 NLRB 1172 fn. 2 (1999). It is clear from the Re-
spondent’s answer and its response to the General Counsel’s motion
that the Respondent is refusing to recognize and bargain with the Union
based solely on its contention that it is under no legal obligation to do
so because the certification is invalid.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 996
All full-time and regular part-time warehousing em-
ployees employed by the Employer at its Shepherds-
ville, Kentucky facility, but excluding all office clerical
employees, all employees employed by temporary
agencies, all professional employees, administrative as-
sistants, and guards and supervisors as defined in the
Act.

(b) Within 14 days after service by the Region, post at
its facility in Shepherdsville, Kentucky, copies of the
attached notice marked “Appendix.”6 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 9, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, 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 the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since January 28,
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.

6 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 Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist any 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
Chemical Workers Union Council of the UFCW, AFL–
CIO–CLC as the exclusive representative of the employ-
ees 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 fol-
lowing bargaining unit:

All full-time and regular part-time warehousing em-
ployees employed by us at our Shepherdsville, Ken-
tucky facility, but excluding all office clerical employ-
ees, all employees employed by temporary agencies, all
professional employees, administrative assistants, and
guards and supervisors as defined in the Act.

APL LOGISTICS, INC.