National Hot Rod Association (NHRA)

National Labor Relations Board - Board Decisions

Jun 23, 2020

369 N.L.R.B. 110 (N.L.R.B. 2020)

369 NLRB No. 110
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–254760
June 23, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
The General Counsel seeks summary judgment in this
case on the grounds that there are no genuine issues of ma-
terial fact as to the allegations in the complaint, and that
the Board should find, as a matter of law, that National
Hot Rod Association (NHRA) (the Respondent) violated
Section 8(a)(5) and (1) of the Act by failing and refusing
to furnish information necessary for and relevant to the
Union’s performance of its duties as the exclusive collec-
tive-bargaining representative of a unit of the Respond-
ent’s employees.
Pursuant to a charge filed on January 17, 2020,1 by In-
ternational Alliance of Theatrical Stage Employees,
AFL-CIO (the Union), the General Counsel issued a com-
plaint on March 13, alleging that the Respondent has vio-
lated Section 8(a)(5) and (1) of the Act by failing and re-
fusing to furnish the Union with requested information.
The Respondent filed an answer admitting in part and
denying in part the allegations of the complaint and assert-
ing affirmative defenses.
On April 17, the Board issued a Decision and Order
granting the General Counsel’s Motion for Summary
Judgment in a related refusal-to-bargain case in which the
Respondent contested the Union’s certification in Case
22–RC–186622 as the bargaining representative of the
employee unit also at issue in this proceeding. National
Hot Rod Association (NHRA), 369 NLRB No. 60 (2020)
(National Hot Rod Association I). In that case, the Board
found that since September 13, 2019, the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by failing and re-
fusing to recognize and bargain with the Union. Id., slip
op. at 2.2
On April 3, the General Counsel filed a Motion for
Summary Judgment on Test of Certification 8(a)(5), Re-
quest to Consolidate and Request for Issuance of Decision
1 All subsequent dates are in 2020, unless otherwise indicated.
2 On May 13, the Respondent filed a Petition for Review of the
Board’s April 17 Order with the United States Court of Appeals for the
District of Columbia Circuit, and on May 29, the General Counsel filed
a cross-application for enforcement of that Order.
and Order.3 On April 20, the Board issued an order trans-
ferring the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The Re-
spondent filed a response, and the General Counsel filed a
reply to the Respondent’s response.
Ruling on Motion for Summary Judgment
At paragraph 8(a) of the complaint, the General Counsel
alleges that about August 23, 2019, the Union requested
in writing the following information from the Respondent:
i. A list of current employees by name and their respec-
tive date(s) of hire, rate(s) of pay, job classification(s),
last address(es), phone number(s), last date of work, and
any record(s) of discipline;
ii. A copy of all current company personnel policies,
practices or procedures applicable to the bargaining unit;
iii. A statement and description of all company person-
nel policies, practices or procedures other than those
mentioned in item number (2) above;
iv. A copy of all company fringe benefit plans (includ-
ing the plan document and summary plan description—
e.g., pension, profit-sharing, severance, stock incentive,
any other) which relate to the employees;
v. Copies of all disciplinary notices, warnings or records
of disciplinary actions (if not otherwise provided in re-
sponse to any item(s) above);
vi. A statement or description of all wage plans, wage
tables, wage bands, wage ranges, and similar guidelines
applicable to bargaining unit employees if not otherwise
provided under number any enumerated item above.
The complaint also alleges that the information de-
scribed above is necessary for and relevant to the Union’s
performance of its duties as the exclusive collective-bar-
gaining representative of the unit (par. 8(b)), and that since
about September 13, 2019, the Respondent has failed and
refused to furnish the Union with the requested infor-
mation (par. 8(c)). The complaint further alleges that by
the above conduct, the Respondent has been failing and
refusing to bargain collectively and in good faith with the
Union in violation of Section 8(a)(5) and (1) of the Act,
and that this unfair labor practice affects commerce within
the meaning of Sec. 2(6) and (7) of the Act (pars. 9 and
10, respectively).
3 The General Counsel, having filed the instant motion prior to the
issuance of National Hot Rod Association I, requested in his motion that
the Board consolidate the instant proceeding with the related refusal-to-
bargain proceeding in National Hot Rod Association I. However, as that
case was already in the issuance process when the Board learned of the
General Counsel’s request to consolidate, the request is denied.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
In its answer, the Respondent denies complaint para-
graphs 8(b) and (c)—that the requested information was
relevant and necessary to the Union’s performance of its
duties as the exclusive collective-bargaining representa-
tive of the unit, and that the Respondent has failed and re-
fused to furnish the information to the Union—but does so
based on its contention that it has no duty to provide the
Union with the requested information because the certifi-
cation in the underlying representation proceeding was
improper. Thus, the Respondent does not assert that the
requested information is not relevant and necessary to the
Union, and it does not deny that it failed to provide the
requested information.4 Rather, the Respondent continues
to contest the validity of the certification based on the is-
sues raised and decided by the Board in the underlying
representation proceeding.5 Further, given the Respond-
ent’s denial of complaint paragraphs 8(b) and (c), it also
denies paragraphs 9 and 10.
Regarding the Respondent’s arguments contesting the
Union’s certification, all representation issues raised by
the Respondent were or could have been litigated in the
prior representation proceeding. The Respondent does not
suggest that there is 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 there-
fore find that the Respondent has not raised any represen-
tation issue that is properly litigable in this unfair labor
practice proceeding. See Pittsburgh Plate Glass Co. v.
NLRB, 313 U.S. 146, 162 (1941).6
We further find that there are no factual issues warrant-
ing a hearing with respect to the Union’s information re-
quest. It is well established that the type of information
the Union requested, concerning the terms and conditions
of employment of unit employees, is presumptively rele-
vant for purposes of collective bargaining and must be fur-
nished on request. See, e.g., CVS Albany, LLC d/b/a CVS,
364 NLRB No. 122, slip op. at 1 (2016), enfd. mem. 709
F. App’x 10 (D.C. Cir. 2017) (per curiam), and Metro
Health Foundations, Inc., 338 NLRB 802, 803 (2003).
The Respondent has not asserted any basis for rebutting
the presumptive relevance of this information.
4 We note that the Respondent, in its response to the Notice to Show
Cause, acknowledges that the procedural history of this proceeding is
accurately set forth in pars. 1 through 18 of the General Counsel’s Mo-
tion for Summary Judgment. Par. 12 of the General Counsel’s motion
states that “On or about September 13, 2019, Respondent, verbally, by
its attorney Daniel Murphy, refused to furnish the Union with the re-
quested information.”
5 Similarly, the Respondent admits complaint par. 6, which alleges
that the Board certified the Union as the exclusive bargaining representa-
tive of the unit on July 29, 2019, but contends that the certification was
improper; and denies complaint par. 7, which alleges that since July 29,
Based on the foregoing, we find that there are no mate-
rial issues of fact regarding the complaint’s allegations
that warrant a hearing. Accordingly, we grant the Motion
for Summary Judgment.7
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 lo-
cated at 2035 Financial Way, Glendora, California, the
only facility involved here, and is engaged in the business
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 operations
in general, the Respondent derived gross revenues in ex-
cess of $500,000 and performed services valued in excess
of $50,000 for entities in States other than the State of Cal-
ifornia.
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
The following employees of the Respondent (the unit)
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act:
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 technicians
(A1 Audio Lead), audio assists/assistants (A2 Audio As-
sist, SUB Mixer), replay producers, videotape operators,
digital recording device operators (EVS Replay Opera-
tor), video technicians (V1 Senior Video, V2 Video Op-
erator), video technician assistants (Video Assist),
graphics operators (VIZ Graphics Operator), graphics
2019, the Union has been the exclusive collective-bargaining representa-
tive of the unit, on the basis that the certification was improper.
6 In its response to the Notice to Show Cause, the Respondent argues,
inter alia, that the Board should reconsider its mail ballot election stand-
ards and that the facts underlying this case are an appropriate vehicle for
that reconsideration. Having reviewed the facts and arguments presented
by the Respondent in its response, we find no basis for disturbing our
Decision and Certification of Representative in the underlying represen-
tation case (368 NLRB No. 26 (2019)).
7 The Respondent’s request that the complaint be dismissed is there-
fore denied.
NATIONAL HOT ROD ASSN. (NHRA) 3
coordinators (GPSC Graphics Coordinator), bug opera-
tors (Bug Operator), runners (RNR Runner), and utility
technicians (UTE Utility) performing work in connec-
tion with telecasting of live or recorded racing events at
remote locations; but excluding all office clerical em-
ployees and professional employees, guards, and super-
visors as defined in the Act, and all other employees.
On July 29, 2019, the Board certified the Union as the
exclusive collective-bargaining representative of the unit.
At all times since July 29, 2019, based on Section 9(a) of
the Act, the Union has been the exclusive collective-bar-
gaining representative of the unit.
About August 23, 2019, the Union requested in writing
that the Respondent furnish information to the Union that
is relevant and necessary to the Union’s performance of
its duties as the exclusive collective-bargaining repre-
sentative of the unit. Since about September 13, 2019, the
Respondent has failed and refused to furnish the Union
with the requested information. We find that the Respond-
ent’s conduct constitutes an unlawful refusal to bargain
collectively 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
furnish the Union with requested information that is rele-
vant and necessary to the Union’s performance of its func-
tions as the exclusive collective-bargaining representative
of the Respondent’s unit employees, the Respondent has
engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (1) and Section
2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent violated Section 8(a)(5) and (1)
8 The General Counsel has requested that the initial certification year
be extended to begin on the date that the Respondent commences to bar-
gain in good faith with the Union. Because this same remedy was re-
quested and granted in our previous decision, it is unnecessary to order
it here again. National Hot Rod Association I, 369 NLRB No. 60, slip
op. at 2 (2020).
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 Envi-
ronmental 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).
of the Act by failing and refusing to furnish the Union with
information that is relevant and necessary to the Union’s
performance of its functions as the exclusive collective-
bargaining representative of the Respondent’s unit em-
ployees, we shall order the Respondent to furnish the Un-
ion with the information requested on August 23, 2019.8
ORDER
The National Labor Relations Board orders that the Re-
spondent, National Hot Rod Association (NHRA), Glen-
dora, California, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to bargain collectively with International
Alliance of Theatrical Stage Employees, AFL-CIO (the
Union) by failing and refusing to furnish it with requested
information that is relevant and necessary to the Union’s
performance of its functions as the exclusive collective-
bargaining representative of the Respondent’s unit em-
ployees.
(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) Furnish to the Union in a timely manner the infor-
mation requested by the Union on August 23, 2019.
(b) Post at its facility in Glendora, California, copies of
the attached notice marked “Appendix.”9 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 29, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent and
maintained 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 customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
9 If the facility involved in these proceedings is open and staffed by a
substantial complement of employees, the notices must be posted within
14 days after service by the Region. If the facility involved in these pro-
ceedings is closed due to the Coronavirus pandemic, the notices must be
posted within 14 days after the facility reopens and a substantial comple-
ment of employees have returned to work, and the notices may not be
posted until a substantial complement of employees have returned to
work. Any delay in the physical posting of paper notices also applies to
the electronic distribution of the notice if the Respondent customarily
communicates with its employees by electronic means. 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 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
that the notices are not altered, defaced, or covered 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 employees and former em-
ployees employed by the Respondent 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 certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
Dated, Washington, D.C. June 23, 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 vi-
olated 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 ac-
tivities.
WE WILL NOT refuse to bargain collectively with Inter-
national Alliance of Theatrical Stage Employees,
AFL-CIO (the Union) by failing and refusing to furnish it
with requested information that is relevant and necessary
to the Union’s performance of its functions as the exclu-
sive collective-bargaining representative of our unit em-
ployees.
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 furnish to the Union in a timely manner the
information requested by the Union on August 23, 2019.
NATIONAL HOT ROD ASSN.
The Board’s decision can be found at
www.nlrb.gov/case/29-CA-254760 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.