Aquaslide 'N' Dive Corporation

National Labor Relations Board - Board Decisions

Aug 13, 1982

263 N.L.R.B. 389 (N.L.R.B. 1982)

AQUASLIDE 'N' DIVE CORPORATION
Aquaslide 'N' Dive Corporation and Industrial,
Technical and Professional Employees Division,
National Maritime Union of America, AFL-
CIO. Case 23-CA-8839
August 13, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND HUNTER
Upon a charge filed on March 4, 1982, by Indus-
trial, Technical and Professional Employees Divi-
sion, National Maritime Union of America, AFL-
CIO, herein called the Union, and duly served on
Aquaslide 'N' Dive Corporation, herein called Re-
spondent, the General Counsel of the National
Labor Relations Board, by the Regional Director
for Region 23, issued a complaint and notice of
hearing on April 5, 1982, 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 Rela-
tions Act, as amended. Copies of the charge and
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
complaint alleges in substance that on February 5,
1982, following a Board election in Case 23-RC-
4972, the Union was duly certified as the exclusive
collective-bargaining representative of Respond-
ent's employees in the unit found appropriate;' and
that, commencing on or about February 26, 1982,
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 April 19, 1982,
Respondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint.
On May 10, 1982, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on May 20, 1982,
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent
Official notice is taken of the record in the representation proceed-
ing, Case 23-RC-4972, 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
(4th Cir. 1968); Golden Age Beverage Ca, 167 NLRB 151 (1967), enfd. 415
F.2d 26 (5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp. 573
(D.C.Va. 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91
(7th Cir. 1968); Sec. 9(d) of the NLRA, as amended.
263 NLRB No. 58
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 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 response to
the Notice To Show Cause, Respondent denies that
it unlawfully has refused to bargain with the
Union, and denies that the Union is a labor organi-
zation within the meaning of the Act. Respondent
admits all other allegations of the complaint. Re-
spondent further asserts that the election in Case
23-RC-4972 was held at a time when a substantial
and representative group of the unit employees had
no opportunity to cast ballots. It contends that the
Board improperly denied its request for review of
the Regional Director's findings concerning these
issues. Respondent argues in the alternative that the
Union's certification is invalid in that the Board
erred by overruling its objections to the election
held in Case 23-RC-4972.
Counsel for the General Counsel argues that Re-
spondent is attempting to litigate issues which
were, or could have been, raised in the underlying
representation proceeding. We agree with the Gen-
eral Counsel's contention.
An examination of the entire record herein, in-
cluding that of the representation proceeding in
Case 23-RC-4972, discloses that the Regional Di-
rector issued a Decision and Direction of Election
on April 22, 1981.2 By telegram dated May 19, the
Board denied Respondent's request for review. The
election in Case 23-RC-4972 was conducted on
May 22. The tally of ballots shows that, of approxi-
mately 442 eligible voters, 282 cast ballots for, and
88 against, the Union; there were 20 challenged
ballots, an insufficient number to affect the results,
and I void ballot. Respondent subsequently filed
timely objections to conduct affecting the results of
the election. Since the preliminary investigation
disclosed that Respondent's Objection I raised sub-
stantial and material issues of fact requiring resolu-
tion at a hearing, the Regional Director, on June
30, directed a hearing on this objection.3
After a hearing in which both Respondent and
the Union participated, the Hearing Officer, on
August 17, issued and served upon the parties his
2 All dates are in 1981. unless otherwise indicated.
a The Regional Director also approved Respondent's request to with-
draw its Objections 2 and 3.
389
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Report on Objections in which he recommended
overruling Respondent's objection and certifying
the Union. Respondent then filed timely exceptions
to the Hearing Officer's report. On February 5,
1982,4 the Board issued its Decision and Certifica-
tion of Representative wherein it adopted the
Hearing Officer's recommendation to overrule Re-
spondent's objection and, thus, certified the Union
as the exclusive bargaining representative of Re-
spondent's employees in the appropriate unit.
In its response to the Notice To Show Cause,
Respondent raises again its contention made in the
underlying representation proceeding, Case 23-
RC-4972, that the Union is not a labor organiza-
tion within the meaning of Section 2(5) of the Act
because it is only a division of the National Mari-
time Union, rather than a separate labor organiza-
tion. Respondent submits documents showing that
on May 19, 1982, the "National Maritime Union"
filed in a Federal court a motion seeking to enjoin
Respondent and its agents from carrying or dis-
charging firearms in the vicinity of a picket line es-
tablished by the unit employees. Based on this evi-
dence, Respondent contends that, since the Nation-
al Maritime Union, and not the Industrial, Techni-
cal and Professional Employees Division, is the
labor organization moving for injunctive relief in
that case, therefore the National Maritime Union is
claiming to represent the unit employees in disre-
gard of the certification issued by the Board.
Simply because another union has sought an in-
junction against Respondent is no reason to con-
clude that the certified union is not a labor organi-
zation. Respondent does not allege that the certi-
fied Union has abandoned its certification as the ex-
clusive representative of the unit employees for
collective-bargaining purposes, nor is there any evi-
dence that it has done so. We have reviewed the
submissions relating to the Federal court case and
we do not see how they support Respondent's ar-
gument. We note that since the certified Union is a
division of the National Maritime Union, which
filed the motion in Federal court, it seems probable
that the omission of the name of the certified
Union from the pleadings in that case was either
inadvertent or that its inclusion was deemed unnec-
essary. In any event, we find that the evidence sub-
mitted by Respondent fails to raise any issue war-
ranting denial of the Motion for Summary Judg-
ment.
As for Respondent's other contentions in opposi-
tion to the Motion for Summary Judgment, it is
well settled that in the absence of newly discov-
ered or previously unavailable evidence or special
circumstances a respondent in a proceeding alleg-
4Not reported in volumes of Board Decisions.
ing a violation of Section 8(aX5) is not entitled to
relitigate issues which were or could have been liti-
gated in a prior representation proceeding. 5
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, except as
discussed above, nor does it allege that any special
circumstances exist herein which would require the
Board to reexamine the decision made in the repre-
sentation proceeding. We therefore find that Re-
spondent 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
Aquaslide 'N' Dive Corporation, a Texas corpo-
ration, maintains an office and place of business in
Brownsville, Texas, where it is engaged in the
manufacture of fiberglass swimming pool accesso-
ries. During the past 12 months, a representative
period, Respondent, in the course and conduct of
its business operations, sold and shipped from its
Brownsville, Texas, facilities goods and materials
valued in excess of $50,000 directly to points locat-
ed outside the State of Texas. During this same
period, Respondent derived gross revenues in
excess of $1 million from the manufacture of fi-
berglass swimming pool accessories.
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
Industrial, Technical and Professional Employees
Division, National Maritime Union of America,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
I See Pittsburgh Plate Glase Ca v. N.LR.B., 313 U.S. 146, 162 (1941)
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
390
AQUASLIDE 'N' DIVE CORPORATION
III. 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
employed by the Employer at its facility locat-
ed at 11 Southside Road, Port Brownsville,
Brownsville, Texas; excluding all other em-
ployees, office clerical employees, guards and
supervisors as defined in the Act.
2. The certification
On May 22, 1981, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional
Director for Region 23 designated the Union as
their representative for the purpose of collective
bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on February 5, 1982, 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 February 8, 1982, and
at all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about February 26, 1982, and con-
tinuing at all times thereafter to date, Respondent
has refused, and continues to refuse, to recognize
and bargain with the Union as the exclusive repre-
sentative for collective bargaining of all employees
in said unit.
Accordingly, we find that Respondent has, since
February 26, 1982, 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, Respond-
ent 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 oper-
ations described in section I, above, have a close,
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:
CONCI.USIONS OF LAW
1. Aquaslide 'N' Dive Corporation is an employ-
er engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Industrial, Technical and Professional Em-
ployees Division, National Maritime Union of
America, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All production and maintenance employees
employed by the Employer at its facility located at
11 Southside Road, Port Brownsville, Brownsville,
Texas; excluding all other employees, office cleri-
cal employees, guards and supervisors as defined in
the Act, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning
of Section 9(b) of the Act.
4. Since February 5, 1982, 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 February 26, 1982,
and at all times thereafter, to bargain collectively
391
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the above-named labor organization as the ex-
clusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Re-
spondent 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, Respond-
ent 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)(1) 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,
Aquaslide 'N' Dive Corporation, Brownsville,
Texas, 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
conditions of employment with Industrial, Techni-
cal and Professional Employees Division, National
Maritime Union of America, AFL-CIO, as the ex-
clusive bargaining representative of its employees
in the following appropriate unit:
All production and maintenance employees
employed by the Employer at its facility locat-
ed at 11 Southside Road, Port Brownsville,
Brownsville, Texas; excluding all other em-
ployees, office clerical employees, guards and
supervisors as defined in the Act.
(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.
(b) Post at its facility in Brownsville, Texas,
copies of the attached notice marked "Appendix." 6
Copies of said notice, oil forms provided by the
Regional Director for Region 23, 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 Re-
spondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 23,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
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 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 Industrial, Technical and Professional
Employees Division, National Maritime Union
of America, AFL-CIO, as the exclusive repre-
sentative 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 repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
392
AQUASLIDE 'N' DIVE CORPORATION
All production and maintenance employees
employed by the Employer at its facility lo-
cated at 11 Southside Road, Port Browns-
ville, Brownsville, Texas; excluding all other
employees, office clerical employees, guards
and supervisors as defined in the Act.
AQUASLIDE 'N' DIVE CORPORATION
393