United Artists of Puerto Rico

National Labor Relations Board - Board Decisions

Mar 15, 1982

260 N.L.R.B. 926 (N.L.R.B. 1982)

I)1ICISI()NS ()t: NA 'IONAI L.AB()R RE: LAII()NS O()ARI)
United Artists of Puerto Rico and Union De Tron-
quistas De Puerto Rico, Local 901, Internation-
al Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Case 24-
CA-4595
March 15, 1982
DECISION AND ORDER
BiY MEMIBERS FANNING, JENKINS, AND)
ZIMMIIRMAN
Upon a charge filed on November 2, 1981, by
Union de Tronquistas de Puerto Rico, Local 901,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
herein called the Union, and duly served on United
Artists of Puerto Rico, herein called Respondent or
Employer, the General Counsel of the National
Labor Relations Board, by the Regional Director
for Region 24, issued a complaint and notice of
hearing on November 20, 1981, against Respond-
ent, alleging that Respondent had engaged in and
was engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(5)
and (1) and Section 2(2), (6), and (7) of the Nation-
al 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 September
28, 1981, following a Board election in Case 24-
RC-6639, the Union was duly certified as the ex-
clusive collective-bargaining representative of Re-
spondent's employees in the unit found appropriate
herein;' and that, commencing on or about October
7, 1981, 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. On or about
December 2, 1981, Respondent filed its answer to
the complaint admitting in part, and denying in
part, the allegations in the complaint.
On December 11, 1981, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on December
21, 1981, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
()fficial notice is taken of the record in the represenlation procceeding
Case 24 RC 6639, as the term "record" is defined in Ses,. 102 68 and
102 69(g) of the Ioard's Rules and Regulations, Series 8, as amended See
LTV Elhctros ivtemi, Inc., 166 NI.RB 938 (1967), enfd 388 F 2d 683 (4th
Cir. 1968): Goldenrl Ig Beverage (Co, 167 NLRt 151 (1'967), enfd. 415
F 2d 26 (5th Cir 1969); Intertrvpe C',, v Pee,lio, 26`9 F Supp 573
(DCVa 1967): llttrr Corp.. I64 NLRB 378 (1967), cnfd 397 :2d l1
(7th Cir 1968); Sec. 9(d) of the N I RA, as ilelinded
260 NLRB No. 116
mary Judgment should not be granted. Respondent
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 in its response
to the Notice To Show Cause, Respondent main-
tains that the certification of the Union was invalid.
Respondent admits its refusal to bargain, but denies
that its refusal violated Section 8(a)(5) and (1) of
the Act. Specifically, Respondent contends that the
unit set forth in the complaint is not appropriate
for the purposes of collective bargaining; that a
majority of the employees in the appropriate col-
lective-bargaining unit have chosen the Union
herein as their collective-bargaining representative;
that the Regional Director violated the due-process
clause of the fifth amendment of the United States
Constitution and the Board's Rules and Regulations
in the investigative procedure and the processing
of the objections; and that the Employer appropri-
ately withdrew its consent to the election.
A review of the entire record, including the
record in Case 24-RC-6639, shows the following:
On June 22, 1981, the Union filed a petition in
Case 24-RC-6639 seeking to represent a unit in-
cluding all porters, cashiers, candy girls, ushers,
and movie projector operator employed by the
Employer at its movie theaters located at Carolina
(U.A. Plaza Carolina and U.A. 150 Laguna Gar-
dens) and Santurce (Paramount), Puerto Rico, ex-
cluding all office clerical employees, guards, and
supervisors as defined in the Act. On July 14, 1981,
the Employer's district manager, Rafael Ramos Co-
brain, and Union Representative Miguel A. Torres
executed, with the approval of the Regional Direc-
tor, a Stipulation for Certification Upon Consent
Election for the above-described unit.
On July 15, 1981, the Employer's attorney,
Edwin Quinones, filed a motion requesting the
Board to "eliminate" the aforesaid stipulation and
order a hearing to enable the Employer to express
its views concerning the petition filed by the
Union. In support of the motion, Quinones stated
that on July 14, 1981, the parties attended a
"hearing," i.e., a conference, with Board Agent
Awilda Morales, and the Employer, through Quin-
ones, consented to an election to be held on
August 17, 1981. Quinones was thereafter informed
by the Employer that his consent to an election
926
LNIITI) ARIISFS ()1 PF RIO() RICO()
was "deauthorized." The Employer based its deter-
mination on "its firm belief that there existed a
series of legal and technical aspects which should
[have] been discussed at [the conference] and in ad-
dition that there had been a misunderstanding" be-
tween Quinones and the Employer as to the latter's
desire to have a hearing regarding the Union's peti-
tion.
On July 17, 1981, the Regional Director, who
pointed out that the Employer desired "to litigate
certain unspecified legal and technical issues,"
denied its motion on the ground that the stipulation
had been approved by the Regional Director; that
it was executed by the Employer's district man-
ager, Rafael Ramos Cobrain, rather than its coun-
sel; and that the Employer made no affirmative
showing of unusual circumstances or indicated in
said motion that its request was joined in by the
Union.
On July 21, 1981, the Employer filed a motion
for reconsideration which was denied by the Re-
gional Director on July 23, 1981.
On August 17, 1981, an election by secret ballot
was conducted. The tally of ballots shows that, of
approximately 62 eligible voters, 56 cast ballots, of
which 42 were for, and 8 against, the Union. Six
ballots were challenged, an insufficient number to
affect the results of the election.
On August 21, 1981, the Employer filed timely
objections to the election, stating that the Union's
"conduct, statements and activities . . . in the pre-
election and election campaign . . . were such as
to have constituted improper campaign practices."
In addition, the Employer stated that "the Regional
Director and the Board erred in not granting [its]
request to set aside the agreement for election
and to proceed to a full hearing."
On September 4, 1981, the Regional Director
issued a Report on Objections wherein he held
with respect to the first contention that the Em-
ployer had not complied with Section 102.69 (a) of
the Board's Rules and Regulations, which requires
the submission of a short statement giving the rea-
sons for the objections. With respect to the second
contention, the Regional Director found no merit
therein for the reasons cited in his denial of the
Employer's motion of July 17, 1981. Accordingly,
the Regional Director recommended that the Em-
ployer's objections be overruled in their entirety
and that the Union be certified as the exclusive col-
lective-bargaining representative of the Employer's
employees in the appropriate unit. The Employer
did not thereafter file exceptions to the Regional
Director's Report on Objections.
On September 28, 1981, the Board issued a Deci-
sion and Certification of Representative wherein it
adopted the recommendations of the Regional Di-
rector.
It is w'ell 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, 3 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. 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
Respondent is engaged in the retail operation of
theaters exhibiting motion pictures in Puerto Rico.
During the past year, Respondent, in the course
and conduct of its business, purchased and caused
to be transported and delivered to its places of
business films and other goods and materials valued
in excess of $50,000, of which goods and materials
valued in excess of $50,000 were transported and
delivered to its theaters in interstate commerce di-
rectly from points located outside Puerto Rico.
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(2), (6), and (7) of the Act,
and that it will effectuate the policies of the Act to
assert jurisdiction herein.
It. THE I ABOR ORGANIZATION INVOI.VID
Union de Tronquistas de Puerto Rico, Local 901,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, is a
labor organization within the meaning of Section
2(5) of the Act.
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