El Conquisador Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Joseph K. Kivel and Magma Investment and Develop- ment Corp., a joint venture d/b/a El Conquistador Company and International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Local No. 310. Case 28-CA-4334 August 30, 1977 DECISION AND ORDER By MEMBERS JENKINS, PENELLO, AND WALTHER Upon a charge filed on April 21, 1977, by International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 310, herein called the Union, and duly served on Joseph K. Kivel and Magma Investment and Development Corp., a joint venture d/b/a El Conquistador Company, herein called the Respon- dent, the General Counsel of the National Labor Relations Board, herein called the General Counsel, by the Regional Director for Region 28, issued a complaint on May 13, 1977, 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, complaint, and notice of hearing before an Adminis- trative 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 2, 1977, following a Board election in Cases 28-RD- 248 and 28-RM-352, the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropri- ate; I and that, commencing on or about March 8, 1977, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargain- ing representative, although the Union has requested and is requesting it to do so. Thereafter, Respondent filed its answer admitting in part, and denying in part, the allegations in the complaint. On July 12, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, with exhibits attached. Subsequently, on July 18, 1977, 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. Respon- ' Official notice is taken of the record in the representation proceeding, Cases 28-RD 248 and 28-RM 352, 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 ElecIrosyslems, Inc., 166 NLRB 938 (1967), enfd. 388 231 NLRB No. 143 dent 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 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 In its answer to the complaint and response to the Notice To Show Cause, Respondent admits the request and refusal to bargain but in substance attacks the Union's certification on the basis of its election objections in the underlying representation proceeding. Respondent further contends that the failure of the Board to grant a hearing on its objections deprived it of due process and that it is entitled to a hearing on these issues. Review of the record herein, including the record in Cases 28-RD-248 and 28-RM-352, reveals that an election conducted pursuant to a Stipulation for Certification Upon Consent Election on December 3, 1976, resulted in a vote of seven to three in favor of the Union, with no ballots challenged. Respondent filed timely objections to conduct affecting the results of the election, alleging, in substance, that shortly before the election one of the employees received a phone threat that his tires would be slashed unless he voted for the Union; a little over an hour before the election was scheduled to begin an agent of the Union was observed talking to two employees on the premises soliciting support for the Union; the president of the Union was observed sitting in an automobile in the immediate proximity of the voting area while the polls were open; and, following the filing of Respondent's petition, the Union promised to and did extend credit and other benefits to certain employees. After investigation, the Acting Regional Director issued a Report and Recommendations on Objec- tions to Conduct Affecting the Results of the Election on December 30, 1976, in which he recommended that Respondent's objections be over- ruled in their entirety and that the Union be certified. Thereafter, Respondent filed exceptions to the Acting Regional Director's report. On March 2, 1977, the Board, having considered the Acting Regional Director's report, Respondent's exceptions thereto, and the entire record, adopted the findings, conclusions, and recommendations of the Acting Regional Director and certified the Union as 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. 840 EL CONQUISTADOR CO. exclusive bargaining agent of employees in the unit stipulated to be appropriate. On March 10, 1977, the Respondent filed a request for review and reconsid- eration, requesting that the Board review and reconsider its Decision and Certification of Repre- sentative2 and that the election be invalidated or, in the alternative, that a hearing be directed. By order dated April 21, 1977, the Board denied Respondent's request for review and reconsideration. It thus appears that Respondent is attempting in this proceeding to relitigate issues fully litigated and finally determined in the representation proceeding. 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(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 the Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and the 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 the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. In this proceeding Respondent contends that due process entitles it to a hearing on its objections to the election. Prior to adopting the findings, conclusions, and recommendations of the Regional Director's Report on Objections and Recommendations, the Board considered the report, the Respondent's exceptions thereto, and the entire record in this case. By its adoption of the report recommending that Respondent's objections be overruled, and its subse- quent order denying Respondent's request for review and reconsideration, the Board necessarily found that the objections raised no substantial or material issues warranting a hearing. 4 Further, it is well established that the parties do not have an absolute right to a hearing on objections to an election. It is only when the moving party presents a prima facie showing of substantial and material issues which would warrant setting aside the election that it is entitled to an evidentiary hearing. It is clear that, Not reported in bound volumes of Board Decisions. : 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). 4 Madisonville Concrete Co., A Division of Corum & Edwards, Inc., 220 NLRB 668 (1975); Evansville Auto Parts, Inc., 217 NLRB 660 1975). 5 GTE Lenkurt, Incorporated 218 NLRB 929 (1975); Heavenly Valley Ski Area. a California Corporation, and Heavenly Valley, a Partnership, 215 NLRB 734 (1974). Amalgamated Clothing Workers of America [Winfield Manufacturing Company, Inc.] v. N.LR.B., 424 F.2d 818, 828 (C.A.D.C., 1970). absent arbitrary action, this qualified right to a hearing satisfies the constitutional requirements of due process.5 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 The Respondent is engaged in the operation and management of the El Con Shopping Center located at 3601 East Broadway, Tucson, Arizona. During the 12-month period preceding the issuance of the complaint, a representative period, Respondent, in the course and conduct of its operations, received gross revenues in excess of $100,000 from its operation of the El Con Shopping Center, of which at least $25,000 was received from Montgomery Ward and Company (herein called Ward's), Levy's, a Division of Federated Department Stores, Inc. (herein called Levy's), Steinfeld's, and J.C. Penney Company (herein called Penney's). Ward's, Levy's, Steinfeld's, and Penney's are each engaged in the operation of retail department stores in the State of Arizona. During the 12-month period preceding the complaint, which period is representative of each of their annual operations generally, Ward's, Levy's, Steinfeld's, and Penney's each received goods and materials valued in excess of $50,000 which were shipped from States other than the State of Arizona directly to each of their respective facilities. Ward's, Levy's, Steinfeld's, and Penney's, individually, are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. We find, on the basis of the foregoing, that Respondent 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.6 II1. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Local No. 310, is a labor organization within the meaning of Section 2(5) of the Act. 6 Although in its answer to the complaint Respondent denies that it is an employer engaged in commerce within the meaning of Sec. 2(2). (6). and (7) of the Act, it admits all of the factual allegations in the complaint which are necessary to satisfy the jurisdictional standard for shopping centers as established in the Board's decision in Carol Management Corporation, etcrr., 133 NLRB 1126 (1961). Accordingly, Respondent's denial raises no material issue warranting a hearing. 841 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 111. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent constitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act: All maintenance men and gardners employed by the Respondent at the El Con Shopping Center, 3601 East Broadway, Tucson, Arizona; excluding office clerical employees, watchmen and guards, professional employees, and supervi- sors as defined in the Act. 2. The certification On December 3, 1976, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Director for Region 28, 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 March 2, 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 March 8, 1977, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about March 8, 1977, 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 representa- tive for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since March 8, 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, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (I) 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 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); 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 1. Joseph K. Kivel and Magma Investment and Development Corp., a joint venture d/b/a El Conquistador Company, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 310, is a labor organization within the meaning of Section 2(5) of the Act. 3. All maintenance men and gardners employed by the Respondent at the El Con Shopping Center, 3601 East Broadway, Tucson, Arizona; excluding office clerical employees, watchmen and guards, professional employees, 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. 842 EL CONQUISTADOR CO. 4. Since March 2, 1977, 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 purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about March 8, 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)(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. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Joseph K. Kivel and Magma Investment and Development Corp., a joint venture d/b/a El Conquistador Company. Tucson, Arizona, 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 International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 310, as the exclusive bargaining representative of its employees in the following appropriate unit: All maintenance men and gardners employed by the Respondent at the El Con Shopping Center, 3601 East Broadway, Tucson. Arizona; excluding office clerical employees, watchmen and guards, professional employees and supervi- sors as defined in the 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 office in the El Con Shopping Center, 3601 East Broadway, Tucson, Arizona, copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 28, after being duly signed by Respon- dent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous 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 28, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 7 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 Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 310, 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: 843 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All maintenance men and gardners em- ployed by the Respondent at the El Con Shopping Center, 3601 East Broadway, Tucson, Arizona; excluding office clerical employees, watchmen and guards, profes- sional employees and supervisors as defined in the Act. JOSEPH K. KIVEL AND MAGMA INVESTMENT AND DEVELOPMENT CORP., A JOINT VENTURE D/B/A EL CONQUISTADOR COMPANY 844