California Inspection Rating Bureau

870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD California Inspection Rating Bureau and Professional and Clerical Employees Division of Teamsters Lo- cal No. 856, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. Case 20-CA-11192 August 9, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO Judgment. Subsequently, on May 21, 1976, 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 granted. Respondent thereafter filed a response to Notice 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: Upon a charge filed on March 16, 1976, by Profes- sional and Clerical Employees Division of Teamsters Local No. 856, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and duly served on California Inspection Rating Bureau, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 20, issued a complaint and no- tice of hearing on April 8, 1976, 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 (1) and Section 2(6) and (7) of the National Labor Rela- tions Act, as amended. Copies of the charge, com- plaint, and notice of hearing before an Administra- tive 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 February 13, 1976, following a Board election in Case 20-RC-12062 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;I and that, commenc- ing on or about March 3, 1976, and at all times there- after, 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 April 15 and 21, 1976, respectively, Respondent filed its answer and amended answer to the complaint ad- mitting in part, and denying in part, the allegations in the complaint. On May 7, 1976, counsel for the General Counsel filed directly with the Board a Motion for Summary 'Official notice is taken of the record in the representation proceeding, Case 20-RC-12062, 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 Electosystems, 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, 1967), Follett Corp, 164 NLRB 378 (1967), enfd 397 F 2d 91 (C A 7, 1968), Sec 9(d) of the NLRA, as amended Ruling on the Motion for Summary Judgment In its answer, amended answer, and response, Re- spondent denies that it is an employer engaged in commerce and that the Board has jurisdiction over it and further contends that the Union's certification is invalid because of its election objections, alleging material misrepresentations made by the Union, which were improperly overruled. Both Respondent and counsel for the General Counsel assert that there are no issues of fact requiring a hearing and that this is a proper case for summary judgment. We agree. Review of the record, including that in the under- lying representation proceedings, Case 20-RC- 12062, indicates that, after a hearing in which juris- diction and unit questions were litigated, the pro- ceedings were transferred to the Board for decision. With respect to jurisdiction, Respondent contended (I) that the Respondent is exempt under the Act as a political subdivision of the State of California direct- ly engaged in state-related functions, and (2) that, even if Respondent were not exempt but an employ- er in commerce under the Act, the Board should re- fuse to assert jurisdiction because of Respondent's special relationship to exempt state functions and be- cause the high degree of state control precluded ef- fective collective bargaining. In its Decision and Di- rection of Election 2 issued December 16, 1974, the Board found on the record that Respondent is not a political subdivision but is an employer within the meaning of the Act and exercised its discretion to assert, rather than to decline, jurisdiction. Accord- ingly, the Board directed an election in the unit found appropriate which was held on January 15, 1975, and was won by the Union. Respondent filed timely objections alleging, in substance, (a) misrepresentations in law and fact in- cluding (1) benefits under current union contracts, (2) specific terms which would be included in the contract the Union would negotiate, (3) union strike authority and procedure, and its strike record, and '215 NLRB 780 (1974) 225 NLRB No. 120 CALIFORNIA INSPECTION RATING BUREAU 871 (4) union policies and rules, and (b) promises of ben- efit, including waiver of union fees and dues and the guarantee that a contract would result if the Union won the election. On April 23, 1975, after an investi- gation, the Acting Regional Director issued her Re- port on Objections recommending that a hearing be held on the two objections regarding the alleged mis- representations concerning the Union's strike author- ity, procedure, and record and that all other objec- tions be overruled.3 Respondent filed timely exceptions to the report and a brief in support, reiter- ating its objections, contending that the denial of a hearing violated due process and requesting that the election be set aside. On June 19, 1975, the Board issued its Decision and Order adopting the Acting Regional Director's findings and specifically finding that the exceptions did not raise material or substan- tial issues of law or fact which would require setting the election aside or warranting a hearing on the ob- jections which the Acting Regional Director recom- mended be overruled. Accordingly, the Board over- ruled these objections and ordered a hearing on the two strike objections. After the hearing, in which the Respondent partici- pated and subsequently filed a brief, the Hearing Of- ficer issued his Report on Objections on November 5, 1975, in which he recommended that both objec- tions be overruled substantially on the grounds (1) that the employees could evaluate statements regard- ing their right to vote on a strike issue and the Union's strike record, and (2) that, in any event, the statements did not constitute misrepresentations so substantial as to warrant setting the election aside. Respondent filed timely exceptions, basically except- ing to the Hearing Officer's findings and lack there- of. On February 13, 1976, the Board issued its Supplemental Decision and Certification of Representative in which it adopted the Hearing Officer's findings and recommendations, and specifi- cally found that Respondent's exceptions did not raise material or substantial issues of law or fact re- quiring the Board to set the election aside. Accord- ingly, the Board overruled the objections and certi- fied the Union. It thus appears that Respondent seeks in this proceeding to relitigate issues raised and resolved in the underlying representation case. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging 7 The Acting Regional Director's recommendation to overrule was based on her findings that waiver of fees and dues was permissible, that promises of contractual benefits were mere puffing which would not warrant setting the election aside, and that Respondent's remaining objections were either unsupported by the evidence or involved union statements to which Re- spondent had replied a violation of Section 8(a)(5) is not entitled to reliti- gate issues which were or could have been litigated in a prior representation proceeding.4 All issues raised by the Respondent in this pro- ceeding were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the de- cision 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.' We shall, accordingly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is a nonprofit association organized under the laws of California, with an office and place of business in San Francisco, California, where it is engaged in the business of performing the workmen's compensation insurance rating function, pursuant to the California Insurance Code, CIC. Respondent during the past calendar year, in the course and con- duct of its business operations, received gross reve- nues in excess of $500,000 and performed services valued in excess of $50,000 for various insurance companies located within California, which insur- ance companies, including State Farm Insurance Company, Continental Insurance Company, and Allstate Insurance Company, in turn performed serv- ices in California valued in excess of $50,000 directly for customers located outside Calfornia. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material here- in, 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 juris- diction herein. 4 See Pittsburgh Plate Glass Co v NLRB , 3 1 3 U S 146, 162 (1941), Rules and Regulations of the Board, Secs 102 67(f) and 102 69(c) s In its answer and amended answer to the complaint Respondent denies the appropriateness of the unit In the underlying representation proceed- ing, Case 20-RC-12062, Respondent contended that Group IV employees, part-time student employees, and two accounting clerks who allegedly were confidential employees should be excluded from the unit In its Decision and Direction of Election, the Board agreed to exclude Group IV and part- time student employees, but rejected the contention that the accounting clerks were confidential employees and included them in the unit Since Respondent has litigated unit issues in the representation case it may not relitigate those issues herein 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED Professional and Clerical Employees Division of Teamsters Local No. 856, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers 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 con- stitute a unit appropriate for collective -bargaining purposes within the meaning of Section 9 (b) of the Act: All employees in classifications Groups I, II, and III, employed at the Employer's San Fran- cisco, California, operation, including the ac- counting clerks, Monsef and Lightell, but ex- cluding all part-time student employees, all Group IV employees, and all professional em- ployees, confidential employees, guards, and su- pervisors as defined in the National Labor Rela- tions Act. 2. The certification On January 15, 1976, 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 20 designated the Union as their representative for the purpose of collective bargain- ing with the Respondent. The Union was certified as the collective-bargaining representative of the em- ployees in said unit on February 13, 1976, 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 February 19, 1976, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about March 3, 1976, 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 March 3, 1976, and at all times thereafter, re- fused 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 opera- tions described in section I, above, have a close, inti- mate, 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 mean- ing 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 ap- propriate unit, and, if an understanding is reached, embody 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 se- lected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate 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 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Bur- nett Construction Company, 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. California Inspection Rating Bureau is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Professional and Clerical Employees Division of Teamsters Local No. 856, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees in classifications Groups I, II, CALIFORNIA INSPECTION RATING BUREAU 873 and III, employed at the Employer's San Francisco, California, operation, including the accounting clerks, Monsef and Lightell, but excluding all part- time student employees, all Group IV employees, and all professional employees, confidential employ- ees, guards, and supervisors as defined in the Nation- al Labor Relations Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since February 13, 1976, the above-named la- bor 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 March 3, 1976, 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 Re- spondent in the appropriate unit, Respondent has en- gaged 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 to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. Group IV employees, and all professional em- ployees, confidential employees, guards, and su- pervisors as defined in the National Labor Rela- tions 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 San Francisco, California, operation copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Re- gional Director for Region 20, after being duly signed by Respondent's representative, shall be post- ed 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 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, California Inspection Rating Bureau, San Francisco, California, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and con- ditions of employment with Professional and Clerical Employees Division of Teamsters Local No. 856, In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the ex- clusive bargaining representative of its employees in the following appropriate unit: All employees in classifications Groups I, II, and III, employed at the Employer's San Fran- cisco, California, operation, including the ac- counting clerks, Monsef and Lightell, but ex- cluding all part-time student employees, all 6In 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 concerning rates of pay , wages, hours, and other terms and conditions of employment with Pro- fessional and Clerical Employees Division of Teamsters Local No. 856, International Brother- hood of Teamsters , Chauffeurs , Warehousemen and Helpers of America , as the exclusive repre- sentative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD interfere 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 represen- tative of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wag- es, 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 employees in classifications Groups I, II, and III, employed at the Employer's San Francisco, California, operation, including the accounting clerks, Monsef and Lightell, but excluding all part-time student employees, all Group IV employees, and all professional employees, confidential employees, guards, and supervisors as defined in the National La- bor Relations Act. CALIFORNIA INSPECTION RATING BUREAU