Whitney Museum of American Art, 573 (1980)

WHITNEY MUSEUM OF AMERICAN ART

Whitney Museum of American Art and Local 259,

United Automobile, Aerospace and Agricultural Implement Workers of America. Case 2-CA-16663

January 24, 1980 DECISION AND ORDER

BY CHAIRMAN FANNING AND MEMBERS

PENELLO AND TRUESDALE

Upon a charge filed on August 20, 1979, by local 259, United Automobile, Aerospace and Agricultural Implement Workers of America, herein called the Union, and duly served on Whitney Museum of American Art, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 2, issued a complaint and notice of hearing on September 6, 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 (I) 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 admistrative 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 July 25, 1979, following a Board election in Case 2-RC-18237, 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 August 28, 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 September 14, 1979, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint.

Thereafter, on October 9, 1979, the General Counsel filed directly with the Board in Washington, D.C., a Motion for Summary Judgment and Issuance of Decision and Order, and Petition for Summary Judgment and Issuance of Decision and Order, with exhibits attached. The General Counsel submits, in effect, that the denials set forth in Respondent's answer raise no issues which have not been litigated and determined by the Board in the underlying representation proceeding, Case 2-RC-18237, and that there are no issues to be determined by a hearing.

He, therefore, petitions: (1) that the denials contained Official notice is taken of the record in the representation proceeding, Case 2-RC-18237, 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 Electrosystem, Inc. 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir. 1968);

247 NLRB No. 61 in Respondent's answer be deemed to have been litigated and determined in Case 2-RC-18237, and that such determinations are binding on Respondent in this case; (2) that a finding be made that Respondent has admitted all other allegations contained in the complaint; (3) that a finding be made that Respondent violated Section 8(a)(5) and (1) of the Act; (4) that prior to, and without the necessity of, a hearing, the Board issue a Decision and Order against Respondent, containing findings of fact and conclusions of law, in accordance with the allegations of the complaint, and remedying the unfair labor practices so found; and (5) that such other, further, and different relief be granted as may be appropriate and proper.

Subsequently, the Board, on October 16, 1979, 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 be granted. Respondent thereafter filed a memorandum in opposition to the Motion for Summary Judgment.

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 It its answer to the complaint, Respondent admits its refusal to bargain and contends that the Board's certification of the Union is invalid, that the Union has never represented an uncoerced majority of its employees in an appropriate unit. In this regard,

Respondent, in substance, argues that the Board issued the certification without an articulated basis for rejecting Respondent's opposition to its issuance; and that the certification issued without adherence to Board precedent, and without a hearing, all in violation of Respondent's fifth amendment due process rights and the Board's own rules and regulations.

It argues that for these reasons the certification was unlawful, arbitrary, and capricious, rendering the certification a nullity. Respondent also avers in its opposition to the Motion for Summary Judgment that the Union unlawfully conferred substantial and meaningful economic benefits and other inducements on the eligible voters, made material misrepresentations to them, and engaged in other deceptive campaign practices. Respondent further contends its refusal to bargain was in good faith and it contests the effects on commerce of its refusal to bargain.

Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir.

1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C. Va. 1967); FollettrrCorp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended.

573

DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel contends that Respondent is improperly seeking to relitigate issues which were or could have been raised and decided in the underlying representation proceeding. We agree with the General Counsel.

Review of the record herein, including the record in Case 2-RC-18237, reveals that on January 30, 1979, in the representation proceeding, the Union filed a petition seeking to represent certain of Respondent's employees. On February 14, 1979, the Regional Director for Region 2 approved a Stipulation for Certification Upon Consent Election executed by the Union and Respondent. On March 15, 1979, the election was conducted by the Regional Director for Region 2, among the employees in the stipulated unit.

The tally of ballots was 12 for, and 9 against, the Union. On April 27, 1979, after an investigation of Respondent's timely filed objections, the Regional Director issued a Report on Objections and Recommendations finding no merit in Respondent's objections and recommending that the Union be certified as the exclusive collective-bargaining representative of the employees in the appropriate unit, noted herein,

Respondent subsequently filed exceptions to the said report and a brief and memorandum in support thereof with the Board in Washington, D.C. On July 25, 1979, the Board issued a Decision and Certification of Representative in which, upon consideration of the record in view of the exceptions and briefs, it adopted the Regional...