Robert's Tours

National Labor Relations Board - Board Decisions

Sep 30, 1977

232 N.L.R.B. 651 (N.L.R.B. 1977)

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