Los Angeles County Museum of Art

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 381 (N.L.R.B. 1981)

LOS ANGELES COUNTY MUSEUM OF ART
Museum Associates d/b/a Los Angeles County
Museum of Art and Moving Picture Projection-
ists Local 150, I.A.T.S.E. Case 31-CA-10900
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed on February 24, 1981, by
Moving Picture Projectionists Local 150,
I.A.T.S.E., herein called the Union, and duly
served on Museum Associates d/b/a Los Angeles
County Museum of Art, herein called Respondent,
the General Counsel of the National Labor Rela-
tions Board, by the Acting Regional Director for
Region 31, issued a complaint on March 11, 1981,
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor prac-
tices 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 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 January 30,
1981, following a Board election in Case 31-RC-
4903, 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 17, 1981,
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 March 20, 1981,
Respondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint.
On June 23, 1981, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on June 26, 1981,
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
thereafter filed a response to the General Counsel's
'Official notice is taken of the record in the representation proceeding,
Case 31-RC-4903, 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 Co.. 167 NLRB 151 (1967), enfd. 415
F.2d 26 (5th Cir. 1969); Interrype 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
258 NLRB No. 47
Motion for Summary Judgment and 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 its response to
the Notice To Show Cause, Respondent repeats
the argument, first raised in the representation pro-
ceeding, that the Board has no jurisdiction over
Respondent. Respondent contends that it can nei-
ther negotiate meaningfully nor implement effec-
tively a collective-bargaining agreement because it
is substantially controlled by a governmental subdi-
vision. The General Counsel argues that all materi-
al issues have been previously presented to, and de-
cided by, the Board, and that there are no litigable
issues of fact requiring a hearing. We agree with
the General Counsel.
Our review of the record herein, including the
record in Case 31-RC-4903, discloses that the
Acting Regional Director for Region 31 issued a
Decision and Direction of Election on December
12, 1980; thereafter, Respondent filed a request for
review and stay of election pending review of the
Acting Regional Director's Decision and Direction
of Election, and the Board, on January 14, 1981,
denied the request for review and stay of election
pending review on the ground that it raised no sub-
stantial issues warranting review. An election was
conducted on January 16, 1981. The tally of ballots
showed three votes for, and none against, the
Union, with no challenged ballots. On January 30,
1981, the Regional Director for Region 31 issued a
Certification of Representative, certifying the
Union as the collective-bargaining representative of
the unit found appropriate.
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
2 See Pittsburgh Plate Glacss Co. v. N.L.R.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.6
9 (c).
381
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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. Accordingly, we grant the
Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is now, and has been at all times ma-
terial herein, a California corporation with an
office and principal place of business in Los Ange-
les, California, where it is engaged in the operation
of an art museum and galleries for the display of an
art collection and other exhibits. In the course and
conduct of its business operations, Respondent an-
nually purchases and receives goods or services
valued in excess of $50,000 directly from suppliers
located outside the State of California.
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
Moving Picture Projectionists Local 150,
I.A.T.S.E., 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:
Included: All audio-visual assistants employed
by the employer.
Excluded: All other employees, guards and su-
pervisors as defined in the Act as amended.
2. The certification
On January 16, 1981, a majority of the employ-
ees of Respondent in said unit, in a secret-ballot
election conducted under the supervision of the
Regional 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 January 30, 1981, 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 6, 1981, 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 17, 1981, 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 17, 1981, 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-
382
LOS ANGELES COUNTY MUSEUM OF ART
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:
CONCLUSIONS OF LAW
1. Museum Associates d/b/a Los Angeles
County Museum of Art is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Moving Picture Projectionists Local 150,
I.A.T.S.E., is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The following employees of Respondent con-
stitute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
Included: All audio-visual assistants employed
by the Employer;
Excluded: All other employees, guards and su-
pervisors as defined in the Act as amended.
The following employees constitute a unit
appropriate for the purposes of collective-
bargaining within the meaning of Section
9(b) of the Act.
4. Since January 30, 1981, 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 17, 1981,
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)(l) 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,
Museum Associates d/b/a Los Angeles County
Museum of Art, Los Angeles, California, its offi-
cers, 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 Moving Picture
Projectionists Local 150, I.A.T.S.E., as the exclu-
sive bargaining representative of its employees in
the following appropriate unit:
Included: All audio-visual assistants employed
by the employer;
Excluded: All other employees, guards and su-
pervisors as defined in the Act as amended.
(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 Los Angeles, California, facility
copies of the attached notice marked "Appendix."3
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.
(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.
I 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."
383
DECISIONS OF 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 Moving Picture Projectionists Local 150,
I.A.T.S.E., as the exclusive representative 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:
Included: All audio-visual assistants employed
by the employer;
Excluded: All other employees, guards and su-
pervisors as defined in the Act as amended.
MUSEUM ASSOCIATES D/B/A Los
ANGELES COUNTY MUSEUM OF ART
384