Robert's Tours

ROBERTS TOURS Robert's Tours, Inc. and ILWU Local 142.1 Case 37- CA-1365 September 30, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge filed on May 17, 1977, and an amended charge filed on May 24, 1977, by ILWU Local 142, herein called the Union, and duly served on Robert's Tours, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 20, issued a complaint on June 1, 1977, and an amendment to the complaint on July 18, 1977, 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 National 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 complaint alleges in substance that on March 14, 1977, following a Board election in Case 37-RC- 2302, the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate;2 and that, commencing on or about May 13, 1977, and at all times thereafter, Respondent has refused, and con- tinues 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 June 21, 1977, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint and stating its affirmative defenses. On July 26, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment and memorandum in support thereof, with appendixes attached. Subsequently, on August 3, 1977, the Board issued an order transferring the proceeding to the Board and a Notice To Show I Caption appears as amended on July 18, 1977. 2 Official notice is taken of the record in the representation proceeding, Case 37-RC 2302, 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 Electrosystems, 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); Folletrr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA, as amended. I See Pittsburgh Plate Glass Co. v. N.LRB., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). 4 Respondent filed a request under the Freedom of Information Act 232 NLRB No. 97 Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respon- dent thereafter filed a response to the Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority 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 It is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(aX5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding.3 Respondent does not contend that there is newly discovered or previously unavailable evidence bear- ing on the issues raised in the representation proceeding. Rather, Respondent asserts that the Board erred in rejecting its objections to the validity of the election based on the Regional Director's report and in refusing to allow Respondent the opportunity to view the records of the Regional Director's investigation.4 Our review of the record, including the record in Case 37-RC-2302, discloses that in an election held on October 20, 1976, pursuant to a Stipulation for Certification Upon Consent Election, the Union was successful by a vote of 15 to 3, with 7 nondetermina- tive challenged ballots. Respondent thereafter filed timely objections to conduct affecting the results of the election, alleging in substance that agents of the Union engaged in electioneering along the line of march to the polling place and maintained a list on which they checked off voters as they passed. After an investigation, the Regional Director on December 10, 1976, issued a report on objections in which she recommended that Respondent's objec- tions be overruled in their entirety as they did not raise substantial and material issues affecting the results of the election. Respondent filed timely exceptions and a brief in support in which it contended that the Regional Director did not (FOIA), 5 U.S.C. Sec. 552, et seq., seeking to examine the Regional Director's files in Case 37-RC-2302. The Regional Director found the requested information to be privileged from disclosure under the exemp- tions in secs. 5 and 7(a), (c), and (d) of the FOIA. On appeal, the General Counsel upheld the determination of the Regional Director. Respondent by letter requested the Board to find that it had made a timely request for the information and that the denial was prejudicial to its case. As Respondent is not entitled to discovery or examination of witnesses in an investigation of a representation case, we find that it was not prejudiced by the denial of its FOIA request. Texas Industries, Inc., et al. v. N. L R.B., 336 F.2d 128 (C.A. 5, 1964). 651 DECISIONS OF NATIONAL LABOR RELATIONS BOARD investigate the objections fully and made material errors of law. Respondent requested that the election be set aside and a second election directed. On March 14, 1977, the Board issued a Decision and Certification of Representative 5 in which, after reviewing the record in light of the exceptions and briefs, it adopted the findings and recommendations of the Regional Director and certified the Union as the exclusive bargaining representative of the em- ployees in the unit stipulated to be appropriate. In so doing, the Board implicitly found that there were no material or substantial issues warranting a hearing. It is well established that an evidentiary hearing is not required in a representation proceeding unless there are material and substantial issues of fact. 6 The courts have not questioned the Board's use of summary judgment in cases where there are no material or substantial issues of fact in which the Board has decided issues relating to objections without holding an evidentiary hearing.7 All issues raised by Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and 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 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 I. THE BUSINESS OF RESPONDENT Robert's Tours, Inc., a Hawaii corporation with its principal place of business located in Lihue, Kauai, Hawaii, is engaged in the business of providing tour transportation and services on the island of Kauai. During the past calendar year, Respondent's gross revenues exceeded $500,000 and during that same period it purchased and received goods and materials valued in excess of $50,000 from points located outside the State of Hawaii. We find that Respon- dent is, and has been at all times material, an I Not reported in bound volumes of Board Decisions. 6 Allied Foods, Inc., 189 NLRB 513 (1971), and cases cited in fn. 6 therein. 7 Amalgamated Clothing Workers of America [Winfield Manufacturing Company, Inc.I v. N.LR.B., 424 F.2d 818 (C.A.D.C., 1970), and cases cited therein. s Respondent contends that the April 7, 1977, letter from the Union constituted a new demand for recognition in a statewide unit rather than a demand for bargaining in the certified unit. The letter was sent to "Robert's 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 jurisdic- tion. II. THE LABOR ORGANIZATION INVOLVED ILWU Local 142 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 Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time drivers and narrators employed by the Respondent on the island of Kauai; excluding washers, luggage people, mechanics, office clerical employees, confidential employees, professional employees, guards and supervisors as defined in the Act. 2. The certification On October 20, 1976, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Acting Regional Director for Region 20, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bargaining representa- tive of the employees in said unit on March 14, 1977, 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 April 7, 1977, 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.8 Commencing on or about May 13, 1977, and continuing at all times thereafter to date, Respondent has refused, and Hawaii Tours," which operates on four islands, rather than to "Robert's Tours, Inc." on the island of Kauai. It asks for certain information with respect to "covered employees," along with general information about company policies and practices. Respondent's reply clearly indicates that Respondent understood the letter to be a demand for bargaining in the certified unit. Moreover, Respondent admitted in its answer that it has since May 13, 1977, refused to recognize and bargain with the Union for the appropriate unit. We therefore find that the Union made a valid request for bargaining in the certified unit. 652 ROBERTS TOURS 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 May 13, 1977, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor practices 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, intimate, 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 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 appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate 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); Burnett 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 I. Robert's Tours, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. ILWU Local 142 is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time drivers and narrators of Respondent employed on the island of Kauai; excluding washers, luggage people, mechan- ics, office clerical employees, confidential employees, professional employees, guards and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since March 14, 1977, the above-named labor organization has been the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about May 13, 1977, 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 practices 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, employ- ees 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 meaning of Section 8(a)(l) 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. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Robert's Tours, Inc., Lihue, Kauai, Hawaii, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with ILWU Local 142 as the exclusive bargaining representative of its employ- ees in the following appropriate unit: All full-time and regular part-time drivers and narrators of the Respondent employed on the island of Kauai; excluding washers, luggage people, mechanics, office clerical employees. confidential employees, 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 right guaranteed them in Section 7 of the Act. 653 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 facility in Lihue, Kauai, Hawaii, copies of the attached notice marked "Appendix." 9 Copies of said notice, on forms provided by the Regional Director for Region 20, 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, 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. 9 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 concerning rates of pay, wages, hours, and other terms and conditions of employment with ILWU Local 142 as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner 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 representa- tive 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 agree- ment. The bargaining unit is: All full-time and regular part-time drivers and narrators of the Respondent employed on the island of Kauai; excluding washers, luggage people, mechanics, office clerical employees, confidential employees, profes- sional employees, guards and supervisors as defined in the Act. ROBERT'S TOURS, INC. 654