369 N.L.R.B. 60 (N.L.R.B. 2020)

National Hot Rod Association (NHRA)

National Labor Relations Board - Board DecisionsApr 17, 2020

369 N.L.R.B. 60 (N.L.R.B. 2020)

369 NLRB No. 60 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. National Hot Rod Association (NHRA) and Interna- tional Alliance of Theatrical Stage Employees, AFL–CIO. Case 29–CA–254128 April 17, 2020 DECISION AND ORDER BY CHAIRMAN RING AND MEMBERS KAPLAN AND EMANUEL This is a refusal-to-bargain case in which the Re- spondent, National Hot Rod Association (NHRA), is contesting the Union’s certification as bargaining repre- sentative in the underlying representation proceeding. Pursuant to a charge and an amended charge filed on December 30, 2019 and January 9, 2020, respectively, by International Alliance of Theatrical Stage Employees, AFL-CIO (the Union), the General Counsel issued the complaint on January 30, 2020, alleging that the Re- spondent has violated Section 8(a)(5) and (1) of the Act by refusing the Union’s request to recognize and bargain with it following the Union’s certification in Case 22– RC–186622.1 (Official notice is taken of the record in the representation proceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(d). Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer admitting in part and denying in part the allegations in the complaint and asserting affirmative defenses. On March 3, 2020, the General Counsel filed a Motion for Summary Judgment. On March 6, 2020, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed a response, and the General Counsel and the Union each filed a reply to the Respondent’s response. Ruling on Motion for Summary Judgment The Respondent denies its refusal to bargain and con- tests the validity of the Union’s certification of repre- sentative based on its objections to the election in the underlying representation proceeding.2 1 368 NLRB No. 26 (2019). In the underlying proceeding, Case 22– RC–186622 was consolidated for hearing with Cases 02–CA–185569, 22–CA–190221, and 22–CA–192686. The administrative law judge in the underlying proceeding was sitting as a hearing officer with respect to the representation issues. See Sec. 102.1(f) of the Board’s Rules and Regulations; see also NLRB Casehandling Manual (Part 2) Representa- tion Proceedings, Sec. 11424.1. 2 In its answer, the Respondent denies the allegations in complaint par. 8, which alleges that since about September 13, 2019, the Re- All representation issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding. The Respondent does not offer to ad- duce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special cir- cumstances that would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this un- fair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).3 Accordingly, we grant the Motion for Summary Judg- ment.4 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent has been a Cali- fornia corporation with an office and place of business located at 2035 Financial Way, Glendora, California, the only facility involved here, and is engaged in the busi- ness of sanctioning drag racing and producing the Mello Yello Drag Racing Series for telecast. During the 12-month period preceding issuance of the complaint, which period is representative of its opera- tions in general, the Respondent derived gross revenues in excess of $500,000 and performed services valued in spondent has failed and refused to recognize and bargain with the Un- ion; and complaint pars. 9 and 11, which allege, respectively, that by this conduct the Respondent has been failing and refusing to bargain collectively and in good faith with the Union in violation of Sec. 8(a)(1) and (5) of the Act, and that this unfair labor practice affects commerce within the meaning of Sec. 2(6) and (7) of the Act. Howev- er, in its response to the Notice to Show Cause, the Respondent acknowledges that the procedural history of this case is accurately set forth in pars. 1 through 15 of the General Counsel’s Motion for Sum- mary Judgment. Par. 12 of the General Counsel’s motion states that “On or about September 13, 2019, Respondent, verbally, by its attorney Daniel Murphy, failed and refused to recognize and bargain with the Union as the exclusive bargaining representative of the Unit.” Accord- ingly, we conclude that the Respondent’s denials of complaint pars. 8, 9, and 11 do not raise any issue warranting a hearing. 3 In its response to the Notice to Show Cause, the Respondent acknowledges that the Board does not ordinarily permit a party to relit- igate representation issues as a defense to an unfair labor practice pro- ceeding. The Respondent argues, however, that the facts of this case present compelling reasons for the Board to reconsider its earlier deci- sion overruling the Respondent’s objections, contending that the deci- sion places an inappropriate burden on voters to ensure the fairness of an election and raises serious questions about the integrity of mail ballot elections in Region 22. Having reviewed the facts and arguments presented by the Respondent in its response to the Notice to Show Cause, we find no basis for departing from our longstanding rule or disturbing our Decision and Certification of Representative in the un- derlying representation case. 4 The Respondent’s request that the complaint be dismissed is there- fore denied. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2 excess of $50,000 for entities in States other than the State of California. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification On July 29, 2019, the Board certified the Union as the exclusive collective-bargaining representative of the em- ployees in the following appropriate unit: All broadcast technicians employed by the National Hot Rod Association including technical directors (TD Technical Director), associate directors (AD Associate Director, AD Satellite Feed), assistant producers (PRD Pit Producer, PRD Video Board), camera operators (HC Hard Camera, HH Handheld Camera), audio tech- nicians (A1 Audio Lead), audio assists/assistants (A2 Audio Assist, SUB Sub Mixer), replay producers, vid- eotape operators, digital recording device operators (EVS Replay Operator), video technicians (V1 Senior Video, V2 Video Operator), video technician assistants (Video Assist), graphics operators (VIZ Graphics Op- erator), graphics coordinators (GPSC Graphics Coordi- nator), bug operators (Bug Operator), runners (RNR Runner), and utility technicians (UTE Utility) perform- ing work in connection with telecasting of live or rec- orded racing events at remote locations; but excluding all office clerical employees and professional employ- ees, guards, and supervisors as defined in the Act, and all other employees. The Union continues to be the exclusive collective- bargaining representative of the unit employees under Section 9(a) of the Act. B. Refusal to Bargain The Union, by email dated August 23, 2019, requested that the Respondent recognize and bargain collectively with it as the exclusive collective-bargaining representa- tive of the unit. Since about September 13, 2019, the Respondent has failed and refused to recognize and bar- gain with the Union. We find that the Respondent’s conduct constitutes an unlawful failure and refusal to recognize and bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing since September 13, 2019, to recognize and bargain with the Union as the exclusive collective-bargaining representative of the employees in the appropriate unit, the Respondent has engaged in un- fair labor practices affecting commerce within the mean- ing of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union and, if an understanding is reached, to embody the understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of the certifi- cation as beginning on the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); accord Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964).5 ORDER The National Labor Relations Board orders that the Respondent, National Hot Rod Association (NHRA), Glendora, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with International Alliance of Theatrical Stage Employees, AFL–CIO, as the exclusive collective-bargaining repre- sentative of the employees in the bargaining unit. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclu- sive collective-bargaining representative of the employ- ees in the following appropriate unit concerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agree- ment: 5 In addition to the customary notice posting remedies, the General Counsel requests the additional remedy that the Respondent mail a copy of the notice to each unit employee. We deny this request because the General Counsel has not shown that this additional measure is needed to remedy the effects of the Respondent’s unfair labor practices. See Environmental Contractors, Inc., 366 NLRB No. 41, slip op. at 4 fn. 6 (2018); On Target Security, Inc., 362 NLRB No. 31, slip op. at 2 (2015) (not reported in Board volumes); First Legal Support Services, LLC, 342 NLRB 350, 350 fn. 6 (2004). NATIONAL HOT ROD ASSN. (NHRA) 3 All broadcast technicians employed by the National Hot Rod Association including technical directors (TD Technical Director), associate directors (AD Associate Director, AD Satellite Feed), assistant producers (PRD Pit Producer, PRD Video Board), camera operators (HC Hard Camera, HH Handheld Camera), audio tech- nicians (A1 Audio Lead), audio assists/assistants (A2 Audio Assist, SUB Sub Mixer), replay producers, vid- eotape operators, digital recording device operators (EVS Replay Operator), video technicians (V1 Senior Video, V2 Video Operator), video technician assistants (Video Assist), graphics operators (VIZ Graphics Op- erator), graphics coordinators (GPSC Graphics Coordi- nator), bug operators (Bug Operator), runners (RNR Runner), and utility technicians (UTE Utility) perform- ing work in connection with telecasting of live or rec- orded racing events at remote locations; but excluding all office clerical employees and professional employ- ees, guards, and supervisors as defined in the Act, and all other employees. (b) Within 14 days after service by the Region, post at its facility in Glendora, California, copies of the attached notice marked “Appendix.”6 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places, including all places where notices to employees are cus- tomarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent custom- arily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current em- ployees and former employees employed by the Re- spondent at any time since September 13, 2019. (c) Within 21 days after service by the Region, file with the Regional Director for Region 29 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. 6 If 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” Dated, Washington, D.C. April 17, 2020 John F. Ring, Chairman _ Marvin E. Kaplan, Member William J. Emanuel, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT fail and refuse to recognize and bargain with International Alliance of Theatrical Stage Employ- ees, AFL–CIO, as the exclusive collective-bargaining representative of our employees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the fol- lowing appropriate bargaining unit: All broadcast technicians employed by the National Hot Rod Association including technical directors (TD Technical Director), associate directors (AD Associate Director, AD Satellite Feed), assistant producers (PRD Pit Producer, PRD Video Board), camera operators (HC Hard Camera, HH Handheld Camera), audio tech- nicians (A1 Audio Lead), audio assists/assistants (A2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4 Audio Assist, SUB Sub Mixer), replay producers, vid- eotape operators, digital recording device operators (EVS Replay Operator), video technicians (V1 Senior Video, V2 Video Operator), video technician assistants (Video Assist), graphics operators (VIZ Graphics Op- erator), graphics coordinators (GPSC Graphics Coordi- nator), bug operators (Bug Operator), runners (RNR Runner), and utility technicians (UTE Utility) perform- ing work in connection with telecasting of live or rec- orded racing events at remote locations; but excluding all office clerical employees and professional employ- ees, guards, and supervisors as defined in the Act, and all other employees. NATIONAL HOT ROD ASSOCIATION (NHRA) The Board’s decision can be found at www.nlrb.gov/case/29-CA-254128 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.