Sida of Hawaii, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1973

205 N.L.R.B. 734 (N.L.R.B. 1973)

734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sida of Hawaii , Inc. and Hawaii Transportation and
Allied Workers Union , SIU of NA, AFLr-CIO. Case
37-CA-888
August 27, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
Upon a charge filed on March 23, 1973, by Hawaii
Transportation and Allied Workers Union, SIU of
NA, AFL-CIO, herein called the Union, and duly
served on Sida of Hawaii, Inc., herein called the Re-
spondent, the General Counsel of the National Labor
Relations Board, by the Regional Director for Region
20, issued a complaint on May 7, 1973, against Re-
spondent, 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 Adminis-
trative Law Judge were duly served on the parties to
this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on March 1, 1973,
following a Board election in Case 37-RC-1793 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commencing
on or about March 21, 1973, and at all times thereaf-
ter, Respondent has refused, and continues 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
May 14, 1973, Respondent filed its answer to the com-
plaint admitting in part, and denying in part, the alle-
gations in the complaint.
On May 21, 1973, counsel for the General Counsel
filed directly with the Board a motion for summary
judgment. Subsequently, on May 25, 1973, 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. Respondent thereafter filed a motion to
dismiss and a supporting memorandum, opposing the
General Counsel's motion for summary judgment.
'Official notice is taken of the record in the representation proceeding,
Case 37-RC-1793, as the term "record " is defined in Secs 102 68 and 102
69(f) of the Board's Rules and Regulations , Series 8, as amended See LTV
Electrosysterns, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C A 4, 1968),
Golden Age Beverage Co, 167 NLRB 152, 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, enfd 397 F 2d 91 (C A 7, 1968), Sec 9(d) of the NLRA
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 and in its motion to
dismiss, the Respondent contends that the Board
failed to establish an appropriate unit for collective
bargaining since all of the taxi services provided by it
are performed by independent contractors and not by
employees as found by the Board.
The record in the underlying representation case
discloses that the Acting Regional Director, in his
Decision and Direction of Election of December 22,
1972, found, contrary to the Respondent's contention,
that the taxicab drivers and dispatchers sought in the
Union's petition were employees of the Respondent
and not independent contractors and that they consti-
tuted an appropriate unit for collective bargaining.
Respondent filed with the Board on January 8, 1973,
a request for review of the Decision and Direction of
Election in which it contended, in substance, that the
individuals included in the bargaining unit were inde-
pendent contractors, and not employees as found in
the Decision. By letter dated January 9, 1973, the
Board rejected Respondent's request for review on the
ground that it was untimely filed. Afterward by tele-
gram dated January 23, 1973, the Board rejected, as
being without merit, Respondent's January 15, 1973,
request for reconsideration of the denial of the request
for review.
In the election conducted on February 14, 1973, a
revised tally of ballots indicates that there were ap-
proximately 153 eligible votes of whom 70 cast ballots
for, and 57 against, the petitioning Union, while 5
ballots were cast for an Intervenor, Hawaii Teamsters
& Allied Workers, Local 996. No objections to the
election having been filed, the Regional Director, on
March 1, 1973, certified the Union. It thus appears
that, in its answer to the complaint and in its motion
to dismiss opposing the General Counsel's motion for
summary judgment, the Respondent is attempting to
relitigate the independent contractors issue which had
been fully litigated and decided adversely to it in the
underlying representation proceeding. This it may not
do.
It is well settled that in the absence of newly discov-
ered or previously unavailable evidence or special cir-
cumstances 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
205 NLRB No. 109
SIDA OF HAWAII, INC.
prior representation proceeding.'
All issues raised by the Respondent in this proceed-
ing 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. 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 THE RESPONDENT
Respondent is a Hawaii corporation with its princi-
pal office and place of business in Honolulu, Hawaii,
where it is engaged in the business of providing taxi-
cab and dispatching services and leasing taxicab
stalls. During the past calendar year, it received gross
revenues in excess of $500,000 and purchased and
received goods valued in excess of $50,000 from firms
located in Hawaii which in turn purchased them from
places located outside the State of Hawaii.
We find, on the basis of the foregoing, that Respon-
dent 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 effectu-
ate the policies of the Act to assert jurisdiction herein.
II THE LABOR ORGANIZATION INVOLVED
Hawaii Transportation and Allied Workers Union,
SIU of NA, AFL-CIO, 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 the Respondent consti-
tute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All employees of the Employer employed as
taxicab drivers and dispatchers at the Employer's
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)
735
place of business in Honolulu , Hawaii , excluding
all other employees , stockholder-drivers, mem-
bers of the board of directors , office clerical em-
ployees, guards, watchmen , and supervisors as
defined in the Act.
2. The certification
On February 14, 1973, a majority of the employees
of Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional Di-
rector for Region 20 designated the Union as their
representative for the purpose of collective bargaining
with the Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on March 1, 1973, and the Union contin-
ues 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 19, 1973, and at
all times thereafter, the Union has requested the Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the
employees in the above-described unit . Commencing
on or about March 21, 1973, 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 representative for collec-
tive bargaining of all employees in said unit.
Accordingly, we find that the Respondent has,
since March 21 , 1973, 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 , Respondent
has engaged in and is engaging in unfair labor practic-
es 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 operations
described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce
and the free flow of commerce.
V THE REMEDY
Having found that Respondent has engaged in and
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is engaging in unfair labor practices within the mean-
ing 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 appro-
priate unit will be accorded the services of their select-
ed bargaining agent for the period provided by law,
we shall construe the initial period of certification as
beginning on the date Respondent commences to bar-
gain in good faith with the Union as the recognized
bargaining representative in the appropriate unit. See
Mar-Jac Poultry Company, Inc., 136 NLRB 785; Com-
merce Company d/b/a Lamar Hotel, 140 NLRB 226,
229, enfd. 328 F.2d 600 (C.A. 5, 1969), cert. denied 379
U.S. 817 (1964); Burnett Construction Company, 149
NLRB 1419, 1421, 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. Sida of Hawaii, Inc., is an employer engaged in
commerce within the meaning of Section 2 (6) and (7)
of the Act.
2. Hawaii Transportation and Allied Workers
Union, SIU of NA, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All employees of the Employer employed as tax-
icab drivers and dispatchers at the Employer 's place
of business in Honolulu , Hawaii ; excluding all other
employees , stockholder-drivers , members of the
board of directors, office clerical employees , guards,
watchmen , and supervisors as defined in the Act con-
stitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the
Act.
4. Since March 1, 1973, the above-named labor or-
ganization has been and now is the certified and ex-
clusive 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 March 21 , 1973, and at
all times thereafter , to bargain collectively with the
above -named labor organization as the exclusive bar-
gaining representative of all the employees of Respon-
dent 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 , Respondent
has interfered with , restrained , and coerced, and is
interfering with , restraining, and coercing, employees
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 mean-
ing 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 Rela-
tions Board hereby orders that Respondent, Sida of
Hawaii, Inc., its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and condi-
tions of employment with Hawaii Transportation and
Allied Workers Union, SIU of NA, AFL-CIO, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All employees of the Employer employed as
taxicab drivers and dispatchers at the Employer's
place of business in Honolulu, Hawaii; excluding
all other employees, stockholder-drivers, mem-
bers of the board of directors, office clerical em-
ployees, guards, watchmen, 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 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 place of business in Honolulu, Ha-
waii, copies of the attached notice marked "Appen-
dix."' Copies of said notice, on forms provided by the
Regional Director for Region 20, after being duly
signed by Respondent's representative, shall be post-
ed by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places
where notices to employees are customarily posted.
3 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 "
SIDA OF HAWAII, INC.
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 20, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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 con-
cerning rates of pay, wages, hours, and other
terms and conditions of employment with Ha-
waii Transportation and Allied Workers Union,
SIU of NA, AFL-CIO, as the exclusive represen-
tative of the employees in the bargaining unit
described below.
WE WILL NOT in any like or related manner in-
terfere 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 representative of
all employees in the bargaining unit described
737
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 employees of the Employer employed as
taxicab drivers and dispatchers at the
Employer's place of business in Honolulu, Ha-
waii; excluding all other employees, stockhold-
er-drivers, members of the board of directors,
office clerical employees, guards, watchmen,
and supervisors as defined in the Act.
SIDA OF HAWAII, INC
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 13018 Federal Building, Box 36047,
450 Golden Gate Avenue, San Francisco, California
94102, Telephone 415-556-3197.