Olivera Egg Ranch, 871 (1979)

OI.IVERA EGG RANCH Olivera Egg Ranch and Sales Delivery Drivers, Warehousemen and Helpers Local 296, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and tHelpers of America. Case 32-CA-1880

September 5, 1979 DECISION AND ORDER

BY MEMBERS PENEIt.O, MURPHY AND TRESDAI.

Upon a charge filed on June 22. 1979, by Sales Delivery Drivers, Warehousemen and Helpers Local 296, International Brotherhood of Teamsters. Chauffeurs, Warehousemen and Helpers of America. herein called the Union, and duly served on Olivera Egg Ranch, herein called Respondent, the General Counsel of the National Labor Relations Board. by the Acting Regional Director for Region 32. issued a complaint and notice of hearing on June 29, 1979.

against Respondent. 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(6) and (7) of the National Labor Relations Act. as amended. Copies of the charge, 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 May 8. 1979, following a Board election in Case 32-RC-522, the Union was duly certified as the exclusive collectivebargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about June 11, 1979, and at all times thereafter,

Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On July 9, 1979, Respondent filed its answer to the complaint admitting in part, and denying in part. the allegations in the complaint.

On July 20, 1979, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on July 27, 1979, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not I Official notice is taken of the record in the representative proceeding.

Case 32 RC-522. 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 Electrovrterm. 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): Irnertype Co. v. Penello. 269 F Supp. 573 (D.C.Va. 1967):

Folklt Corp., 164 NLRB 378 (1967). enfd 397 F 2d 91 (7th Cir 1968); Sec 9(d) of the NLRA, asamended.

be granted. Respondent thereafter filed a response to Notice To Show Cause.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority 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 Respondent's answer to the complaint and its response to the Notice To Show Cause denied paragraph VIII of the complaint pertaining to the legal conclusion that since May 8. 1979. the Union has represented a majority of the employees in the unit certified and is the exclusive collective-bargaining representative of the unit employees. Respondent also denied paragraph XI of the complaint as to the legal conclusion that the conduct of Respondent constitutes a violation of Section 8(a)(5) and (I) of the Act but admitted the rest of the General Counsel's complaint and the factual allegations therein. The General Counsel contended that Respondent is improperly seeking to relitigate issues which were raised and decided on and which issues could have been raised and decided in the underlying representation case.

We agree with the General Counsel.

Review of the record herein. including that in the underlying representation proceeding (Case 32-RC 522), shows that the election was held on January 17, 1979. pursuant to a Stipulation for Certification Upon Consent Election approved on December 14. 1978.

and resulted in a vote of two votes for, and none against, the Union. There were no challenged ballots.

In his report the Regional Director rejected the Employer's objections to the election. The Regional Director found that Larry Harville. a former employee. was talking to employee Albert Vargas, an eligible voter, just outside the doorway of the election area about 5 to 10 minutes prior to the opening of the polls. The Regional Director's investigation found no evidence to establish the alleged fact that Harville was or is an agent of the Union. and, further that there was no evidence to show that Harville engaged in any electioneering before or after the polling session. The Regional Director found that Harville's actions prior to the opening of the polls did not warrant setting aside the election. The Regional Director, accordingly, recommended that the objections be overruled.

The Board on May 8, 1979. adopted the Regional Director's findings and recommendation and certified the Union as the exclusive representative of the unit employees. In so doing the Board found that the Em244 NLRB No. 137

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I)I:('ISIONS OF NATIONAL LABOR RELATIONS BOARD ployer's exceptions raised no material issues of fact and law which would require a reversal of the Regional Director's recommendations or which would require a hearing.

In its response to the Notice To Show Cause, Respondent again denied that the Union represents a majority of the employees in the unit. Respondent now contends that at a minimum a hearing should have been ordered to resolve the alleged factual disputes, i.e., whether Harville was an agent of the Union and whether he campaigned in the polling area.

It is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging 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

Furthermore, Respondent has presented no evidence on the issue other than its unsupported assertions, which do not warrant a hearing on the issue.

In summary then, all issues raised by Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered 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...