Six Flags Over Mid-America, Inc.

National Labor Relations Board - Board Decisions

Dec 3, 1979

246 N.L.R.B. 682 (N.L.R.B. 1979)

I)82( ISIONS O()F NAII()ONAI. I.ABOR RL.A I I()NS B()\ARI)
Six Flags Over Mid-America, Inc. and International
Union, United Plant Guard Workers of America
(UPGWA). Case 14 CA 12902
December 3, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MMIBiI RS JE.NKINS
ANI) TRUEISI)AI.
Upon a charge filed on August 23. 1979. by Inter-
national Union, United Plant Guard Workers of
America (UPGWA), herein called the Union. and
duly served on Six Flags Over Mid-America. Inc.,
herein called Respondent, the General Counsel of the
National Labor Relations Board, by the Regional [)i-
rector for Region 14, issued a complaint and notice of
hearing on August 31, 1979, against Respondent, al-
leging that Respondent had engaged in and was en-
gaging 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 to hearing before an administrative law
judge were duly served on the parties to this proceed-
ing.
With respect to the unfair labor practices. the com-
plaint alleges in substance that on July 25, 1979, fol-
lowing a Board election in Case 14 RC 8812, 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 August 7. 1979. and at all times there-
after. 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
September 7, 1979, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On September 21, 1979, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on September 26.
1979, the Board issued an order transferring the pro-
ceeding to the Board and a Notice To Show ('ause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent there-
after filed a Cross-Motion for Summary Judgment
and a response to the Notice To Show Cause.
I Official notice is taken of the record in Ihe representiir n proceeding.
Case 14 RC 8812, as the term "record" is deined in Secs 102.68 and
102.69(g) of the Board's Rules and Regulations. Series 8, i.t amended See
L.TIV Eleirovotem.\s. Inc., 166 NLRB 938 (1967), enid. 388 F.2d 683 (4th (lr
1968); (iolden Age Beverage (o. 167 NRI.B 151 (1967). enFd 415 F12d 26
(5th ('ir. 1969); Interrpe (,, v. Penetlo, 269 Supp S73 (1)( Vi. 1967):
Follt C(orp.. 164 NLRB 378 (1967), enfl. 397 2d 91 7th (ir 1968) Sec
9(d) of the NLRA. as amended.
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 fllowing:
Ruling on the Motion for SumimarN Judgment
In its answer to the complaint and in its response to
the Notice To Show ('ause. Respondent contends
that the Union's certification was invalid because of
campaign misrepresentations by the Petitioner and
Board agent misconduct. The General ('ounsel con-
tends that there are no factual issues that require a
hearing and that all material issues raised hb Respon-
dent have been decided previously.
An election held on March 15, 1979. resulted in a
vote of six for, and five against, the Union, with no
challenged ballots. Respondent filed timely objections
to conduct affecting the election results, alleging that:
Security officer Gerald Walters misrepresented a
stipulation by telling employees that it was an admis-
sion of guilt by Respondent: security officer John
Rodden misrepresented to employees that a Board
agent had given him affidavits obtained during the
investigation of objections to the earlier election: and
John Rodden told employees that he had received a
"secret document" from a Board agent, which in fct
was part of' the Regional [)irector's February 14,
1979, Report on Objections. On April 10, 1979. after
investigation, the Regional Director issued his Second
Supplemental Report on O()bjections and recommen-
dations in which he recommended that the objections
be overruled in their entirety and that the Board cer-
tif' the Union. Respondent filed timely exceptions
and on Julv 25. 1979, the Board issued a D)ecision
and Certification of' Respresentative 2 in which it
adopted the Regional )irector's findings and recom-
mendations and certified the [inion as the exclusive
bargaining representative of' the employees in the
stipulated, appropriate unit.
It is well settled that in the absence of' newly dis-
covered 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 an
underlying representation proceedingi'
All issues raised by Respondent in this proceeding
were or could have been litigated in the underlying
representation proceeding. and Respondent does not
offer to adduce at a hearing any newly discovered or
previously unavailable evidence, nor does it allege
: Not reported i *lulollues , Bard )Clsions.
'See Piiibhirglih Prl (;1c , ( ,, s , R , 313 1 46. 162 (1941):
Rules arid Regulalio-ns o the llBoard, Sec I)2 67(1 ) and I)
2
.6
9
(c).
246 NLRB No. 102
h682
SIX F A(iS OVER %lII)-AMF-R(' A. IN(
that any special circumstances exist herein which
would require the Board to reexamine the decision
made in the representation proceedting. We therefore
find that Respondent has not raised ans issue which
is properly litigable in this unfair labor practice pro-
ceeding. Accordingly. we grant the General ('ounsel's
Motion fbr Summary Judgment and deny Respon-
dent's Cross-Motion for Summary Judgment.
On the basis of the entire record. the Board makes
the following:
F:iN)N(;IS OF I:A(-r
1. lIF BUSINESS O)t RESPO'()NI)NI
Respondent, a Delaware corporation with offices
and a facility in Eureka, Missouri. is engaged in pro-
viding retail entertainment services. Respondent has
annual gross revenues in excess of $500,000 and an-
nually purchases and receives at its Eureka, Missouri.
facility, directly from points located outside Missouri.
goods valued in excess of $50,000.
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
effectuate the policies of the Act to assert jurisdiction
herein.
II. THE I.ABOR OR(;ANIZAI()ON INVOI.NIV1)
International Union. United Plant Guard Workers
of America (UPGWA). is a labor organization within
the meaning of Section 2(5) of the Act.
2. I'he certificatiln
On M1arcli 15 1979. a nmajri ty of the employees oI
Respondent in said unit. in a secret-hallot election
conducted under the supervision of the Regional )i-
rector for Region 14. designated the l.imon as their
representative for the purpose of collective bargaining
wNith Respondent. The nion ,,as certified as the col-
lective-bargaining representatixe of the emplosees in
said unit on Jul 5. 1979. and the nion continues to
be such exclusive representative xwithin the meaning
of Section 9(a) of the Act.
B. TFi Request l Bargain and ReVomnd'.ii Reiisal
Commencing on or about August 2. 1979, and at
:ll times thereafter, the Union has requested Respon-
dent to bargain collectively ith it as the exclusive
collective-bargaining representative of all the emplo\-
ees in the above-described unit. Commencing on or
about August 7. 1979. and continuing at all times
thereafter to date, Respondent has refused, and con-
tinues 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
August 7, 1979, 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 had en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (I) of the
Act.
I\. I il f I-I - (I ()IF itI t NIAIR iAB()R PRA( It lS
tP()N (O()MMIR(UF
111. TIlE UNFAIR I.ABOR PRA(I'I(S
A. The Representation Procee(ling
I. 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 security guards, as defined by Section 9(h)(3)
of the Act, employed by the Employer at its Eu-
reka, Missouri, facility; Excluding all entertain-
ment. production, and maintenance employees.
office clerical and professional employees, super-
visors as defined in the Act (including all em-
ployees with the rank of sergeant or above), sea-
sonal employees, and all other employees of the
company.
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 a mong the several States and tend to lead to
labor disputes burdening and obstructing commerce
and the free flow of commerce.
\. i1 RMI)Y
Having flund that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and (I) 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 i the ap-
propriate unit, and. if an understanding is reached.
embody such understanding ill a signed agreement.
(>8
DECISIONS OF NATIONAL ABOR REI.ATIONS BOARD
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commences
to bargain in good faith with the Union as the recog-
nized bargaining representative in the appropriate
unit. See Mar-Jac Poultry Company, Inc., 136 NLRB
785 (1962); Commerce Company d/h/a Lamar Hotel.
140 NLRB 226. 229 (1962), enfd. 328 F.2d 600 (5th
Cir. 1964), cert. denied 379 U.S. 817: Burnett Con-
struction 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:
CONI.USIONS OF LAW
1. Six Flags Over Mid-America, Inc., is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. International Union, United Plant Guard
Workers of America (UPGWA), is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All security guards, as defined by Section 9(b)(3)
of the Act, employed by the Employer at its Eureka,
Missouri, facility; excluding all entertainment, pro-
duction, and maintenance employees, office clerical
and professional employees, supervisors as defined in
the Act (including all employees with the rank of ser-
geant or above), seasonal employees, and all other
employees of the Company, constitute a unit appro-
priate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act.
4. Since July 25. 1979, the above-named labor or-
ganization has been and now is the certified and ex-
clusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about August 7, 1979, 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 Re-
spondent in the appropriate unit, Respondent has en-
gaged 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 them in Sec-
tion 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 Rela-
tions Board hereby orders that the Respondent. Six
Flags Over Mid-America. Inc., Eureka. Missouri. its
officers. 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 con-
(litions of' employment with International Union,
United Plant Guard Workers of America (UPGWA),
as the exclusive bargaining representative of its em-
ployees in the following appropriate unit:
All security guards, as defined by Section 9(b)(3)
of the Act, employed by the Employer at its Eu-
reka, Missouri, facility; excluding all entertain-
ment. production, and maintenance employees,
office clerical and professional employees, super-
visors as defined in the Act (including all em-
ployees with the rank of sergeant or above), sea-
sonal employees, and all other employees of the
company.
(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 understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at its place of business in Eureka, Mis-
souri, copies of the attached notice marked "Appen-
dix. "4 Copies of the notice, on forms provided by the
Regional Director for Region 14. 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.
' In the event that this Order is enforced bh a Judgment of a United States
Court oI Appeals. the words in the notice reading "Posted by Order of the
National l.abor Relations Board" shall read "Posted Pursuant t a Judgment
of the In ited Stales (ourt of Appeals nforcing an Order lo the National
labor Relatmins Board.'
684
SIX Al..(iS ()VIR MII-AMIRI(A. IN(C.
(c) Notift the Regional [)irector for Region 14 in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
APPE NI)IX
Nollw(i To EMPL(l)O IoI!S
PosiII) BY ORI)R () 1111
NAII()NAI. ABOR RI.AII()ONS BO()ARI)
An Agency of the United States Government
Wt WILl. N refuse to bargain collectively
concerning rates of pay. wages, hours, and other
terms and conditions of emploN ment with Inter-
national Union, United Plant Guard Workers of
America (UPGWA), as the exclusive representa-
tive of the employees in the bargaining unit de-
scribed below.
Wi: VWIl. NO in any like or related manner
interfiere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
Wl: .II.., upon request, bargain with the
aho\e-nalmed nion as the exclusive representa-
tive of all employees in the bargaining unit de-
scribed below. with respect to rates of pay.
wages, hours, and other terms and conditions of
emnplol ment. and, ilf an understanding is
reached. embod such understanding in a signed
agreement. The bargaining unit is:
All security guards, as defined bh Section
9(b)(3) of the Act, employed bhy the tlmployer
at its Eureka, Missouri, Iacility Excluding all
entertainment, production, and maintenance
employees, office clerical and professional em-
ployees, supervisors as defined in the Act (in-
cluding all employees with the rank of ser-
geant or above), seasonal employees, and all
other employees of the company.
Six 1I A(iS ON I.R MI)-ANIIRI('A, IN(.
68S