Fun Striders, Inc.

National Labor Relations Board - Board Decisions

Mar 6, 1980

248 N.L.R.B. 182 (N.L.R.B. 1980)

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 83
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