Fun Striders, Inc.

182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fun Striders, Inc. and Miscellaneous Warehouse- men, Drivers & Helpers Local 986, Internation- al Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America. Case 31-CA- 9211 March 6, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge filed on July 19, 1979, by Miscel- laneous Warehousemen, Drivers & Helpers Local 986, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called the Union, and duly served on Fun Striders, Inc., herein called Respondent, the Gener- al Counsel of the National Labor Relations Board, by the Regional Director for Region 31, issued a complaint on August 23, 1979, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 8(a)(5) and (I) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge and complaint and notice of hearing before an ad- ministrative law judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on March 23, 1979, following a Board election in Case 31-RC- 4266 the Union was duly certified as the exclusive collective-bargaining representative of Respon- dent's employees in the unit found appropriate;' and that, commencing on or about June 4, 1979, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collec- tively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On August 30, 1979, Respondent filed its answer to the complaint admit- ting in part, and denying in part, the allegations in the complaint and asserting certain affirmative de- fenses. 2 On December 5, 1979, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on December 21, 1979, the Board issued an order transferring the Official notice is taken of the record in the representation proceed- ing, Case 31-RC-4266, as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See LTV Elecrrosysrems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd 415 F.2d 26 (5th Cir. 1969); Interrype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967); Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. 2 Respondent's affirmative defenses consisted of a restatement of its ob- jections to the election. 248 NLRB No. 36 proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent thereafter filed a response in opposition thereto, and the General Counsel filed an answer to Re- spondent's response. 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, Respondent admits that it refused the Union's request to bar- gain, but contends that it had no duty to bargain since the Union has at no time represented an un- coerced majority of employees. Respondent also submits in its response that newly discovered evi- dence warrants a denial of the General Counsel's Motion for Summary Judgment. Counsel for the General Counsel contends that Respondent seeks to relitigate issues previously considered in the under- lying representation proceeding. Our review of the record herein, including the record in Case 31-RC-4266, discloses that after a hearing, the Regional Director for Region 31 issued his Decision and Direction of Election on October 13, 1978. On December 8, 1978, a secret- ballot election was conducted, in which the tally was 635 for, and 471 against, the Union. There were 23 void ballots and 82 nondeterminative chal- lenges. On December 15, 1978, Respondent filed timely objections to conduct affecting the results of the election, alleging in substance that the Union and its agents made misrepresentations and inflam- matory statements, improperly injected racial over- tones into the election, and created a fearful atmo- sphere by provoking acts of violence. After an in- vestigation, the Regional Director issued a supple- mental decision and certification of representative, in which he overruled Respondent's objections in their entirety and certified the Union as the exclu- sive representative of the employees in the appro- priate unit. Subsequently, Respondent filed a timely request for review, which was denied by the Board on May 23, 1979. Respondent then filed a request for reconsideration of the denial of the request for review, contending that new evidence established an agency relationship between the Union and an- other organization which allegedly engaged in con- duct affecting the results of the election. On July 3, 1979, the Board denied the request for reconsider- ation as lacking in merit. FUN STRIDERS, INC. 183 It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- leging 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 Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence, 4 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 Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a California corporation engaged in the manufacture of shoes and handbags. During the 12 months preceding the filing of the petition, Respondent sold goods valued in excess of $50,000 directly to customers located outside the State of California. We find, on the basis of the foregoing, that Re- spondent 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 effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Miscellaneous Warehousemen, Drivers & Help- ers Local 986, International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the mean- ing of Section 2(5) of the Act. :1 See Pimburgh Poli Gloar Co .\ 1R.B.. 313 U.S 146, 162 (1941); Rules and Regulations of the Board, Secs 102 67() and 102.6 9(c) 4 Respondent asserts that an agenc relalionship helmseen the Union and another organization is established hby new cs idence hich emerged in an unfair labor practice hearing oin May 8 through 10, 1979. im Case 31-CA- 836 Howucer, this is the same eidence that uas suhmilled in support of the request for reconsideratlion. rhich he Board denied ot July 3, 1979 II1. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees, shipping and receiving employees, warehouse- men, and truckdrivers employed by Respon- dent at its Redwood, Slausen, and Fault Line locations; excluding all office clerical employ- ees, guards, professional employees and super- visors as defined in the Act, as amended. 2. The certification On December 8, 1978, a majority of the employ- ees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Director for Region 31, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bargaining represen- tative of the employees in said unit on March 23, 1979, 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 June 4, 1979, and at all times thereafter, the Union has requested Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about June 4, 1979, and continuing at all times thereafter to date, 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 Respondent has, since June 4, 1979, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appro- priate 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 oper- ations described in section 1, above, have a close, FUN STRIDERS. INC 183 184 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. 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 appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Fun Striders, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Miscellaneous Warehousemen, Drivers & Helpers Local 986, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees, shipping and receiving employees, warehousemen, and truckdrivers employed by Respondent at its Redwood, Slausen, and Fault Line locations; ex- cluding all office clerical employees, guards, pro- fessional employees and supervisors as defined in the Act, as amended, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since March 23, 1979, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about June 4, 1979, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) 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 Re- lations Board hereby orders that the Respondent, Fun Striders, Inc., Culver City, California, its offi- cers, 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 Miscellaneous War- ehousemen, Drivers & Helpers Local 986, Interna- tional Brotherhood of Teamsters, Chauffeurs, War- ehousemen & Helpers of America, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees, shipping and receiving employees, warehouse- men and truckdrivers employed by Respon- dent at its Redwood, Slausen, and Fault Line locations; excluding all office clerical employ- ees, guards, professional employees and super- visors as defined in the Act, as amended. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise 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 understanding is reached, embody such under- standing in a signed agreement. FUN STRIDERS, INC. 185 (b) Post at its Redwood, Slausen, and Fault Line facilities copies of the attached notice marked "Ap- pendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 31 after being duly signed by Respondent'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 by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 31, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. a 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of The National 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 concerning rates of pay, wages, hours, and other terms and conditions of employment with Miscellaneous Warehousemen, Drivers & Helpers Local 986, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as the exclusive represen- tative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees 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 represen- tative 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 employ- ees, shipping and receiving employees, war- ehousemen, and truckdrivers employed by Respondent at its Redwood, Slausen, and Fault Line locations; excluding all office clerical employees, guards, professional em- ployees and supervisors as defined in the Act. FUN STRIDERS, INC. FUN STRIDERS, INC 185