Heuer International Trucks, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 361 (N.L.R.B. 1984)

HEUER INTERNATIONAL TRUCKS 361
Heuer International Trucks, Inc. and General Team-
sters Local Union No. 528, affiliated with the
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Case 10-CA-19174
14 December 1984
ORDER DENYING THE GENERAL
-COUNSEL'S MOTION FOR SUMMARY
JUDGMENT, GRANTING THE
RESPONDENT'S MOTION FOR
' RECONSIDERATION, AND STAYING
THE CERTIFICATION OF THE
COLLECTIVE-BARGAINING
REPRESENTATIVE
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 21 April 1,983 1 the Regional Director . 'for
Region 10 issued a Complaint and notice of hearing -
in the above-entitled proceeding, alleging that the
Respondent has engaged in and is engaging' in -cer-
tain unfair labor practices affecting commerce
within the meaning of Section '8(a)(1) and (5) and
Section 2(6) and (7) of the National Labor Rela-
tions Act. Specifically the complaint alleges that
the Respondent is engaged in the sales .and servic-
ing of trucks. On 8 March the Union was certified
as the collective-bargaining representative of a
service department unit that includes mechanics,
mechanic trainees, service department utility man,
and shop foreman/service writer at the Respond-
ent's Kennesaw, Georgia facility. 2 Thereafter on 21
March the Union requested to bargain with the Re-
spondent. However, on 8 April and at all times
thereafter the Respondent has refused to bargain
with the Union on the basis that the unit. determi-
nation was inappropriate. Subsequently, the Re-
spondent filed an , answer to the complaint, - admit-
ting that it refused to bargain and again maintain-
ing that the appropriate unit should include all
parts department employees and service clerical
employees.
All dates are in 1983 unless otherwise indicated
2 On 8 February the Respondent filed a request for review of the Re-
gional Director's Decision and Direction of Election and contended that
the unit should include all employees in the parts department and three
clerks It further contended that the unit was inappropriate because there
was no community of interest between the mechanics and service utility
man On 25 February the Board denied this request for review, and
stated that the election raised a substantial issue solely as to the unit
placement of the service department's utility man However, the Board
concluded that this Issue should be resolved through the challenge proce-
dure, and amended the Decision and Direction of Election to permit
them to vote under challenge Thereafter on 4 March the Respondent
filed a motion for reconsideration and reasserted its position that the
clerks and parts employees should be included in the unit On 25 March
the Board denied this motion because it did not raise an issue not previ-
ously considered
Chairman Dotson notes that he did not partici-
pate in the underlying -representation case. Member
Hunter dissented in that proceeding because he
would have granted the Employer's request for,
review of the Regional Director's unit determina-
tion.
Thereafter on 19 May the General Counsel filed
with the Board a Motion for Summary Judgment
on grounds that the Respondent violated Section
8(a)(5) by its'refusal to bargain. The General Coun-
sel asserted that the Respondent's contentions of-
fered no newly discovered or previously unavail-
able evidence, and raised no issue not previously
litigated.
On 26 May the Board issued an order transfer-
ring the proceeding to the Board and Notice to
Show Cause why the General Counsel's Motion
for Summary Judgment should not be granted.
Thereafter on 28 May the Respondent filed an
answer to the Notice to Show Cause and filed a
further pleading entitled "Motion for Reconsider-
ation."
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
We agree that the present case warrants our re-
consideration and therefore deny the General
Counsel's Motion for Summary Judgment. Al-
though our dissenting colleague would grant the
motion on the basis that the Board previously re-
jected the Respondent's arguments and that our de-
cision encourages relitigation in unit determina-
tions, it is well settled that a motion for summary
judgment should only be granted when issues of
fact and law are not in dispute. Here it cannot be
disputed that there exists a conflict in Board law
regarding the appropriate service department unit.
In International Harvester Co., 119 NLRB 1709
(1958), the Board held that "partsmen" though
working with "craftmen" were excluded . from the
bargaining unit since they did not exercise craft
skills: The Board also applied International Harvest-
er Co. recently in Taylor Bros., 230 NLRB 861, 870
(077). There the Board excluded partsmen from
the mechanic unit. However, in Austin Ford, 136
NLRB 1398 (1962), cited by the Respondent, the
Board found that the mechanics there were not a
separate appropriate unit and stated that all service
and parts department employees should be included
in the same bargaining unit. Similarly, as noted by
the Respondent, in Graneto-Datsun, 203 NLRB 550
(1973), the Board refused to separate mechanics
from the rest of the service department employees
and dismissed the 8(a)(5) allegation because there
had been no demand for recognition in the appro-
priate unit. In Gregory Chevrolet, 258 NLRB 233
273 NLRB No. 57
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1981), the Board included parts department em-
ployees with mechanics. Therefore, as clearly indi-
cated by the inconsistency in the cited cases, it
would be highly improper to grant the Motion for
Summary Judgment when We have concluded that
a clarification of existing Board law on this issue is
required.3
The Respondent in its answer and motion for re-
consideration , renews its contention that the only
appropriate unit consists of all parts and service de-
partment employees at its facility. After consider-
ing that argument in light of the Regional Direc-
tor's decision in the underlying representation case,
we conclude that a conflict in Board law exists as
to what constitutes the appropriate unit for a motor
vehicle service department. Accordingly, we have
decided to reconsider the Board's previous deter-
mination of this unit at the Respondent's facility.
ORDER
It is ordered that the General Counsel's Motion
for Summary Judgment is denied, based on the ex-
isting conflict in Board law.
IT IS FURTHER ORDERED that the Respondent's
motion for reconsideration is granted.
IT IS FURTHER ORDERED that the certification of
the collective-bargaining representative be stayed
pending resolution of this issue. The parties herein
may file briefs with the Board in Washington,
D.C., on or before 28 -December 1984.
MEMBER ZIMMERMAN, dissenting.
The Respondent's defense to the summary judg-
ment motion and 8(a)(5) complaint here is, quite
simply, a reiteration of the same argument about
Board precedent and the appropriate bargaining
unit that was twice made and twice rejected by the
Board in the underlying representation proceeding,
Case 10-RC-12709. The third time around, howev-
3 Thus, contrary to our dissenting colleague, we do not believe that we
are required to cite "precedent which holds as a matter of law that a sep-
arate mechanics' unit cannot be found appropriate" in order to deny a .
motion for summary judgment
er, my colleagues in the majority now see an un-
specified conflict in Board law where none was
seen before, even though the Respondent has con-
sistently alleged it. Consequently, the majority will
permit reconsideration and relitigation of a repre-
sentation proceeding bargaining unit issue in the
absence of newly discovered evidence, an interven-
ing change in Board law, or any other genuine spe-
cial circumstance which would require the Board
to reconsider its earlier decisions. This decision
derogates the Board's well-established policy
against relitigation of representation issues in an
8(a)(5) case, 1 creates uncertainty about the finality
of Board election procedures, encourages incessant
litigation, and thereby contravenes the statutory
scheme for the promotion of stability in labor rela-
tions. 2 The majority fails 'to acknowledge that the
Respondent has exhausted its appeals in this admin-
istrative forum. It should now be required to rec-
ognize and bargain with the certified union in the
unit found appropriate or to challenge the Board's
unit determination before a Federal court of ap-
peals.
The question whether relitigation is proper here
subsumes the question whether a conflict in Board
law exists; the majority erroneously suggests the
reverse. To .repeat, the Board -has twice considered
and rejected the argument that a conflict exists. It
settled the issue of law for this case. Had my col-
leagues participated in those actions, the outcome
would undoubtedly have been different. Before
stating now that they see a conflict where their
predecessors did not, however, they must identify
some independent reason for even looking at the
issue. They have not done so.3
1 See Pittsburgh Plate Glass v NLRB, 313 U S 146, 162 (1942), Board's
Rules and Regulations, Secs 102 67(1) and 102 69(c)
2 .See my dissenting opinion in Sub-Zero Freezer Go, 271 NLRB 47
(1984)
3 I note parenthetically that the majority has failed to cite any prece-
dent which holds as a matter of law that a separate mechanics' unit
cannot be found appropnate