Sida of Hawaii, Inc.Download PDFNational Labor Relations Board - Board DecisionsAug 27, 1973205 N.L.R.B. 734 (N.L.R.B. 1973) Copy Citation 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. Copy with citationCopy as parenthetical citation