Tomy Corporation

TOMY CORPORATION Tomy Corporation, a wholly-owned subsidiary of Tomy Kogyo, Inc. and General Truck Drivers, Chauffeurs & Helpers, Local 692, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. Case 21- CA-19504 March 17, 1981 DECISION AND ORDER Upon a charge filed on September 4, 1980, by General Truck Drivers, Chauffeurs & Helpers, Local 692, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, herein called the Union, and duly served on Tomy Corporation, a wholly-owned subsidiary of Tomy Kogyo, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 21, issued a complaint on September 25, 1980, and an amendment to the complaint on October 17, 1980, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor prac- tices 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 and 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 April 11, 1980, following a Board election in Case 21-RC- 15635,' the Union was duly certified as the exclu- sive collective-bargaining representative of Re- spondent's employees in the unit found appropriate; and that, commencing on or about September 4, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bar- gaining representative, although the Union has re- quested and is requesting it to do so. On October 7, 1980, Respondent filed its answer to the complaint admitting in part, and denying in part, the allega- tions in the complaint. On October 27, 1980, Re- spondent filed its answer to the amendment to the complaint. On December 1, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on December 9, 1980, the Board issued an order transferring the I Official notice is taken of the record in the representation proceed- ing, Case 21-RC-15635, as the term "record" is defined in Secs. 102.68 and 102.6 9(g) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electrosystems. Inc., 166 NLRB 938 (1967). enfd. 388 F.2d 83 (4th Cir. 1968): Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969); Intertype 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. 255 NLRB No. 1 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 to the Notice To Show Cause. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its response to the Notice To Show Cause and its answer to the complaint, Respondent admits that it has refused to bargain with the Union, but asserts that the Regional Director's certification in Case 21-RC-15635 was erroneous and invalid. Re- spondent requests that the Board reexamine the Re- gional Director's decision to affirm the Hearing Of- ficer's findings that Respondent failed to satisfy its burden of proof with respect to its election objec- tions. Respondent also requests the Board to review the Regional Director's sustaining of chal- lenged ballots and his inclusion of seasonal employ- ees in the unit. Counsel for the General Counsel argues that Respondent is not presenting newly dis- covered or previously unavailable evidence which was not considered by the Board, and is merely at- tempting to relitigate issues which were or could have been raised in the prior representation pro- ceeding. We agree with the General Counsel. Our review of the record herein, including the record in Case 21-RC-15635, indicates that the Re- gional Director's Decision and Direction of Elec- tion was issued on October 5, 1978. On October 13 and December 1, 1978, the Regional Director issued Errata to the Decision and Direction of Election. Respondent requested review of the De- cision and Direction contending that the Regional Director erred in including seasonal employees in the unit. The Board denied the request for review on October 31, 1978. The election was held on August 17, 1979. The tally of ballots showed that of the valid votes counted, 125 were for, and 113 were against, the Union, and there were 14 chal- lenged ballots. The challenged ballots were suffi- cient in number to affect the results of the election. On August 21, 1979, the Union filed objections to the election, and on August 23, 1979, Respondent filed objections. On September 18, 1979, the Re- gional Director issued a Supplemental Decision and Order Directing Hearing, ordering a hearing to resolve the 14 challenged ballots and certain objections. On February 28, 1980, the Hearing Of- ficer's report and recommendations recommended that some challenges to the ballots be sustained and some challenges be overruled; that Respondent's objections be overruled; that the Union's objections be found moot; and that the Union be certified as DECISIONS OF NATIONAL LABOR RELATIONS BOARD the collective-bargaining representative of Re- spondent's employees in the unit described below. Respondent filed exceptions to the Hearing Offi- cer's report on March 19, 1980. On April 11, 1980, the Regional Director issued a Second Supplemen- tal Decision and Certification of Representative af- firming the Hearing Officer's report. On May 6, 1980, Respondent requested review of the Second Supplemental Decision and Certification of Repre- sentative. On August 13, 1980, the Board denied Respondent's request for review as it raised no sub- stantial issues warranting review. 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.2 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, 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 1. THE BUSINESS OF RESPONDENT Respondent, a California corporation, is and has been engaged in the business of assembling toys and operates facilities located at 901 East 233rd Street and 800 East 230th Street, Carson, Califor- nia. In the normal course and conduct of its busi- ness operations, Respondent annually sells and ships goods and products 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 2 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). Member Zimmerman notes that Member Jenkins premises his dissent from the granting of summary judgment in this case upon his disagree- ment with the Board's determination in the underlying representation proceeding. Although Member Zimmerman did not participate in that underlying proceeding, he considers the Board bound to grant summary judgment without regard to the merits of the issue respondent now at- tempts to relitigate. See Bravos Oldsmobile, 254 NLRB No. 135 (1981). that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED General Truck Drivers, Chauffeurs & Helpers, Local 692, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, 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 consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees of the Employer at its facilities located at 901 East 233rd Street, Carson, California, and 800 East 230th Street, Carson, California, including assemblers, material handlers, linemen, truck- drivers, forklift operators, quality control em- ployees, shipping clerks, and cafeteria employ- ees; excluding all office clerical employees, professional employees, guards, and supervi- sors as defined in the Act. 2. The certification On August 17, 1979, a majority of the employees of Respondent in said unit, in a secret-ballot elec- tion conducted under the supervision of the Re- gional Director for Region 21, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bar- gaining representative of the employees in said unit on April 11, 1980, 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 August 20, 1980, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about September 4, 1980, and con- tinuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive repre- sentative for collective bargaining of all employees in said unit. TOMY CORPORATION Accordingly, we find that Respondent has, since September 4, 1980, 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, Respond- ent 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 oper- ations described in section I, above, have a close, 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. Tomy Corporation, a wholly-owned subsidi- ary of Tomy Kogyo, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. General Truck Drivers, Chauffeurs & Helpers, Local 692, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees of the Employer at its facilities located at 901 East 233rd Street, Carson, California, and 800 East 230th Street, Carson, California, including assem- blers, material handlers, linemen, truckdrivers, forklift operators, quality control employees, ship- ping clerks, and cafeteria employees; excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act, con- stitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 4. Since April 11, 1980, 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 September 4, 1980, and at all times thereafter, to bargain collectively with the above-named labor organization as the ex- clusive bargaining representative of all the employ- ees of Respondent in the appropriate unit, Re- spondent 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, Respond- ent 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, Tomy Corporation, a wholly-owned subsidiary of Tomy Kogyo, Inc., Carson, California, its officers, 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 General Truck- drivers, Chauffeurs & Helpers, Local 692, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the ex- clusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees of the Employer at its facilities located at 901 3 DECISIONS OF NATIONAL LABOR RELATIONS BOARD East 233rd Street, Carson, California, and 800 East 230th Street, Carson, California, including assemblers, material handlers, linemen, truck- drivers, forklift operators, quality control em- ployees, shipping clerks, and cafeteria employ- ees, excluding all clerical employees, profes- sional employees, guards, and supervisors as defined in the Act. (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. (b) Post at the Carson, California, facilities copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 21, 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 Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. MEMBER JENKINS, dissenting: On August 13, 1980, the Board denied the Em- ployer's request for review of the Regional Direc- tor's Second Supplemental Decision and Certifica- tion of Representative. I dissented in part for I would have granted review with respect to the Employer's objection which alleged that the Peti- tioner displayed and distributed a version of the 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 Labor Relations Board." Board's notice of election altered to show an "x" in the "yes" box of the sample ballot. Since I did not agree to the underlying certification in this case and because the issue concerning a possible altered Board document remains for me unresolved, I hereby dissent from this grant of summary judg- ment. 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 General Truck Drivers, Chauffeurs & Helpers, Local 692, International Brotherhood 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 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 repre- sentative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and condi- tions 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 at our facilities located at 901 East 233rd Street, Carson, California, and 800 East 230th Street, Carson, California, including assemblers, material handlers, linemen, truckdrivers, forklift operators, quality con- trol employees, shipping clerks, and cafete- ria employes; excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act. TOMY CORPORATION, A WHOLLY- OWNED SUBSIDIARY OF TOMY KOGYO, INC. 4