Yellow Cab Company of Nevada, Inc.

National Labor Relations Board - Board Decisions

Jul 1, 1981

256 N.L.R.B. 1055 (N.L.R.B. 1981)

YELLOW CAB COMPANY OF NEVADA, INC. 1055
Yellow Cab Company of Nevada, Inc. and Industri-
al, Technical and Professional Employees Divi-
sion, National Maritime Union of America,
AFL-CIO. Case 31-CA-10778
July 1, 1981
DECISION AND ORDER
Upon a charge filed on January 15, 1981, by In-
dustrial, Technical and Professional Employees Di-
vision, National Maritime Union of America,
AFL-CIO, herein called the Union, and duly
served on Yellow Cab Company of Nevada, Inc.,
herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Re-
gional Director for Region 31, issued a complaint
and notice of hearing on February 9, 1981, against
Respondent, alleging that Respondent had engaged
in and was engaging in unfair labor practices af-
fecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Na-
tional Labor Relations Act, as amended. Copies of
the charge and the 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 November
19, 1980, following a Board election in Case 31-
RC-4785, the Union was duly certified as the ex-
clusive collective-bargaining representative of Re-
spondent's employees in the unit found appropri-
ate;' and that, commencing on or about December
4, 1980, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bar-
gaining representative, although the Union has re-
quested and is requesting it to do so. Thereafter,
Respondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint.
On March 23, 1981, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment with exhibits attached. Subse-
quently, on March 25, 1981, the Board issued an
order transferring the proceeding to the Board and
a Notice To Show Cause why the General Coun-
sel's Motion for Summary Judgment should not be
granted. Respondent thereafter filed a response to
the Notice To Show Cause.
I Official notice is taken of the record in the representation proceed-
ing, Case 31-RC-4785, as the term "record" is defined in Sees. 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 F2d 683
(4th Cir, 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd 415
F.2d 26 (5th Cir. 1969); Intertype Co. v Penello, 269 F.Supp 573
(D.C.Va. 1967); Folletl Corp., 164 NLRB 378 (1967), enfd 397 F 2d 91
(7th Cir. 1968); Sec 9(d) of the NLRA, as amended
256 NLRB No. 160
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
Respondent in its answer to the complaint admits
the request and refusal to bargain with the Union.
However, in its answer to the complaint and re-
sponse to the Notice To Show Cause, Respondent
attacks the Union's certification, reiterating its con-
tentions in the underlying representation proceed-
ing that the Acting Regional Director erred in di-
recting an election and that the Regional Director
erred in overruling its subsequent objections to the
election.
Review of the record herein, including the repre-
sentation proceeding in Case 31-RC-4785, reveals
that on May 27, 1980, the Union filed a representa-
tion petition under Section 9 of the National Labor
Relations Act. On July 8, 1980, the Acting Region-
al Director issued his Decision and Direction of
Election in which he found, inter alia, that the
Union was a labor organization within the meaning
of the Act and that there was no contract bar to
the petition. Accordingly, the Acting Regional Di-
rector directed an election in the unit stipulated to
be appropriate.
Thereafter, Respondent filed a request for
review of the Acting Regional Director's decision
in which it contended that the Acting Regional Di-
rector had erred in failing to dismiss the petition
because of an inadequate showing of interest and in
failing to find that there was a contract bar to the
petition. By telegraphic order dated August 1,
1980, the Board denied Respondent's request for
review.
Pursuant to the Acting Regional Director's deci-
sion an election was held on August 16, 1980. At
the conclusion of the balloting the tally revealed
that 134 votes had been cast for, and 89 votes
against, the Union, with I challenged ballot. There-
after, Respondent filed objections to conduct af-
fecting the results of the election, in which it reit-
erated its arguments previously made in its request
for review of the Acting Regional Director's deci-
sion and additionally alleged in substance that the
Union made illegal promises of benefits, made un-
lawful offers to waive initiation fees, seriously mis-
represented material facts, compromised the neu-
trality of the National Labor Relations Board, and
that the election results were not reflective of true
employee sentiment. After investigation, the Re-
gional Director, on November 19, 1980, issued his
Supplemental Decision and Certification of Repre-
sentation, in which he overruled Respondent's ob-
jections in their entirety and certified the Union as
exclusive bargaining representative of the employ-
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees in the appropriate unit. Thereafter, Respondent
filed a request for review of the Regional Direc-
tor's supplemental decision, which the Board
denied by telegraphic order on December 30, 1980.
It thus appears that Respondent is attempting in
this proceeding to relitigate issues fully litigated
and finally determined in the representation pro-
ceeding.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging a violation of Section 8(a)(5) is not entitled
to relitigate issues which were or could have been
litigated in a prior representation proceeding. 2
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, 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.
In this proceeding Respondent contends that it is
entitled to a hearing on its objections to the elec-
tion. Prior to denying Respondent's request for
review, the Board considered the Regional Direc-
tor's supplemental decision and the matters raised
in the request for review, including Respondent's
contention that a hearing on its objections was
warranted.
By denying Respondent's request for review, the
Board necessarily found that the objections raised
no substantial or material issues warranting a hear-
ing. 3 Further, it is well established that the parties
do not have an absolute right to a hearing on ob-
jections to an election. It is only when the moving
party presents a prima facie showing of substantial
and material issues which would warrant setting
aside the election that it is entitled to an eviden-
tiary hearing. It is clear that, absent arbitrary
action, this qualified right to a hearing satisfied the
constitutional requirements of due process. 4 Ac-
cordingly, we grant the Motion for Summary
Judgment.
On the basis of the entire record, the Board
makes the following:
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).
3 See, Madisonville Concrete Co., A Division of Corum & Edwards, Inc.,
220 NLRB 668 (1975): Evansville Auto Parts, Inc.. 217 NLRB 660 (1975).
4 GTE Lenkurt, Inc., 218 NLRB 929 (1975); Heavenly Valley Skt Area,
a California Corporation, and Heavenly Valley, a Partnership, 215 Nl.RB
734 (1974); Amalgamated Clothing Workers of America. Winfield ManuJac-
turing Company, Inc. v. N.L.R.B., 424 F.2d 818, 828 (D.C.Cir. 1970).
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a Nevada corporation with an
office and principal place of business in Las Vegas,
Nevada, where it is engaged in the business of pro-
viding taxi service. Respondent, in the course and
conduct of its business operations, annually derives
gross revenues in excess of $500,000 and annually
purchases and receives goods or services valued in
excess of $50,000 from firms located within the
State of Nevada, which firms receive such goods in
substantially the same form directly from outside
the State of Nevada.
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.
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 cab drivers employed by the Employer in
the State of Nevada operating out of the Em-
ployer's Las Vegas, Nevada, facility; excluding
guards, all other employees and supervisors as
defined in the Act.
2. The certification
On August 16, 1980, a majority of the employees
of Respondent in said unit, in a secret-ballot elec-
tion conducted under the supervision of the Re-
gional Director for Region 31, 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 November 19, 1980, and the Union continues to
be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
YELLOW CAB COMPANY, OF NEVADA, INC 1057
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about November 26, 1980,
and at all times thereafter, including specifically
November 26, 1980, and January 7, 1981, the
Union has requested Respondent to bargain collec-
tively with it as the exclusive collective-bargaining
representative of all the employees in the above-de-
scribed unit. Commencing on or about December
4, 1980, and continuing at all times thereafter to
date, Respondent has refused, and continues to
refuse, to recognize and bargain with the Union as
the exclusive representative for collective bargain-
ing of all employees in said unit.
Accordingly, we find that Respondent has, since
December 4, 1980, 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. Yellow Cab Company of Nevada, Inc., is an
employer engaged in commerce within the mean-
ing 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 cab drivers employed by the Employer in
the State of Nevada operating out of the Employ-
er's Las Vegas, Nevada, facility; excluding guards,
all other employees, 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 November 19, 1980, 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 December 4, 1980,
and at all times thereafter, to bargain collectively
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,
Yellow Cab Company of Nevada, Inc., Las Vegas,
Nevada, 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-
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 cab drivers employed by the Employer in
the State of Nevada operating out of the Em-
ployer's Las Vegas, Nevada, facility; excluding
guards, all other employees 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 Las Vegas, Nevada, facility, copies
of the attached notice marked "Appendix." 5
Copies of said notice, on forms provided by the
Regional Director for Region 31, 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 insure that said notices are not altered,
defaced, or covered by any other material.
' 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 Enlforciing an
Order of the National Labor Relations Board."
(c) Notify the Regional Director for Region 31,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
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:
All cab drivers employed by the Employer
in the State of Nevada operating out of the
Employer's Las Vegas, Nevada, facility; ex-
cluding guards, all other employees and su-
pervisors as defined in the Act.
YELLOW CAB COMPANY OF NEVADA,
INC.