Saga Food Service, Inc.

SAGA FOOD SERVICE, INC. 443 Saga Food Service, Inc. and Teamsters, Allied and Industrial Workers, Local 258, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Inc. Case 15-CA-7522 May 12, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE Upon a charge filed on December 18, 1979, by Teamsters, Allied and Industrial Workers, Local 258, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Inc., herein called the Union, and duly served on Saga Food Service, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Di- rector for Region 15, issued a complaint on Janu- ary 17, 1980, against Respondent, alleging that Re- spondent 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 and complaint and notice of hearing before an administrative law judge were duly served on the parties to this pro- ceeding. With respect to the unfair labor practices, the complaint alleges in substance that on November 23, 1979, following a Board election in Case 15- RC-6524, the Union was duly certified as the ex- clusive collective-bargaining representative of Re- spondent's employees in the unit found appropri- ate;' and that, commencing on or about January 11, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bar- gain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On January 31, 1980, Respondent filed its answer to the com- plaint admitting in part, and denying in part, the al- legations in the complaint. On February 5, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on February 11, 1980, 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- I Official notice is taken of the record in the representation proceed- ing, Case 15-RC-6524, as the term "record" is defined in Sees. 102.68 and 102.69(g) of the Board's Rules and Regulations. Series 8, as amended. See LTV Electroysems. Inc., 166 NLRB 938 (1967), enfd. 388 F2d 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); Follen Corp.. 164 NLRB 378 (1967). enfd. 397 F.2d 91 (7th Cir. 1968) Sec 9(d) of the NLRA, as amended. 249 NLRB No. 48 mary Judgment should not be granted. Respondent did not file a response to the Notice To Show Cause, and therefore the allegations in the Motion for Summary Judgment stand uncontroverted. 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, Respondent denies that it is an employer within the meaning of Section 2(2), (6), and (7) of the Act, that the certi- fied unit is an appropriate unit within the meaning of Section 9(b) of the Act, and that the certifica- tion of the Union as the representative of the em- ployees in said unit is proper. The General Counsel argues that all material issues have been previously decided, that there is no newly discovered or pre- viously unavailable evidence to be considered, and thus that there are no litigable issues of fact requir- ing a hearing. We agree with the General Counsel. Our review of the record herein, including the record in Case 15-RC-6524, discloses that a repre- sentation hearing was held on September 26, 1979. Respondent contended at that time that: (1) the Board did not have jurisdiction over Respondent because of Respondent's relationship with the Uni- versity of Southern Mississippi, and (2) a unit limit- ed to all full-time and regular part-time empoyees employed by Respondent at the University of Southern Mississippi was inappropriate. On October 17, 1979, the Regional Director for Region 15 issued a Decision and Direction of Elec- tion asserting jurisdiction with respect to Respond- ent's business and finding appropriate a unit of all full-time and regular part-time food service em- ployees. Thereafter, Respondent filed with the Board a request for review of the Regional Direc- tor's Decision and Direction of Election, contend- ing that the Regional Director had improperly as- serted jurisdiction over Respondent. On November 14, 1979, the Board denied Re spondent's request for review. In denying revie the Board found it unnecessary to rely on the Re- gional Director's finding that no joint-employer re- lationship existed between Respondent and the Uni- versity of Southern Mississippi, but replied on Na- tional Transportation Services, Inc., 240 NLRB No. 99 (1979). An election was conducted on Novem- ber 14, 1979, in which three votes were cast for, and one against, the Union. On November 23, 1979, the Regional Director for Region 15 issued a Certification of Representative. SAGA FOOD SERVICE, INC. 443 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 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 a Texas corporation engaged in the business of providing food service at the Uni- versity of Southern Mississippi, in Hattiesburg, Mississippi. During the preceding 12 months, a rep- resentative period, Respondent purchased and re- ceived goods and materials valued in excess of $50,000 directly from points located outside the State of Mississippi. 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 Teamsters, Allied and Industrial Workers, Local 258, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Inc., is a labor organization within the meaning of Section 2(5) of the Act. II1. 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: 2 See Pittsburgh Plate GGlss Co. . NL.R.B, 313 US. 146, 162 (1941): Rules and Regulations of the Board, Secs. 102 67(fl and 102 69 (c) All full-time and regular part-time food service employees employed by Respondent at the University of Southern Mississippi, excluding all other employees, student exployees, guards and supervisors as defined in the Act. 2. The certification On November 14, 1979, a majority of the em- ployees of Respondent in said unit, in a secret- ballot election conducted under the supervision of the Regional Director for Region 15, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bargaining repre- sentative of the employees in said unit on Novem- ber 23, 1979, and the Union continues to be such exclusive representative within the meaning of Sec- tion 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about November 29, 1979, and at all times thereafter, including but not limited to January 7 and 9, 1980, the Union has requested Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about January 11, 1980, 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 January 11, 1980, 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. IHE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the SAGA FOOD SERVICE, INC. 445 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- 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. Saga Food Service, Inc., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters, Allied and Industrial Workers, Local 258, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Inc., is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time food serv- ice employees employed by Respondent at the Uni- versity of Southern Mississippi, excluding all other employees, student employees, guards and supervi- sors as defined in the Act, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since November 23, 1979, 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 January 11, 1980, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclu- sive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor prac- tices 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, Saga Food Service, Inc., Hattiesburg, Mississippi, its officers, 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 Teamsters, Allied and Industrial Workers, Local 258, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Inc., as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time food service employees employed by Respondent at the University of Southern Mississippi, excluding all other employees, student employees, guards and supervisors as defined in the Act. (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 University of Southern Mississippi, Hattiesburg, Mississippi, location copies of the at- tached notice marked "Appendix."3 Copies of said notice, on forms provided by the Regional Direc- tor for Region 15, after being duly signed by Re- spondent's representative, shall be posted by Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where I In the eent 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 Relations Hoard" SAGA FOOD SERVICE, INC. 445 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 15, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR REI.ATIONS 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 Teamsters, Allied and Industrial Workers, Local 258, affiliated with International Broth- erhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Inc., as the ex- clusive 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 WIL., 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: All full-time and regular part-time food service employees employed by the Em- ployer at the University of Southern Missis- sippi, excluding all other employees, student employees, guards and supervisors as de- fined in the Act. SAGA FOOD SERVICE, INC.