Heid's Lunch Stand

I)I('CISIONS ()1 NATIONAL LAB()R RA'I IONS BOARI) Valentine A. Ileid Estate, First Trust & Deposit Co., Trustee, d/b/a Heid's Lunch Stand and Hotel, Mo- tel, Restaurant, Cafeteria Employees and Bartend- ers Union, Local 150. Case 3 CA 8925 July 19, 1979 DECISION AND ORDER BY CHAIRMAN FANNIN(G ANI) MI:MLBIRS PENlN.I..1 ANI) TRtSI)AI.I Upon a charge filed on February 7. 1979, by Hotel, Motel, Restaurant. Cafeteria Employees and Bar- tenders Union, Local 150, herein called the Union, and duly served on Valentine A. Heid Estate. First Trust & Deposit Co., Trustee, d/b/a Heid's unch Stand, herein called Respondent, the General Coun- sel of the National Labor Relations Board. by the Regional Director for Region 3, issued a complaint on March 14, 1979, against Respondent, alleging that Respondent had engaged in and was engaging in un- fair labor practices affecting commerce within the meaning of Section 8(a)(5) and () 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 com- plaint alleges in substance that on December 14. 1978, following a Board election in Case 3 RC 7275 the Union was duly certified as the exclusive cllec- tive-bargaining representative of Respondent's em- ployees in the unit found appropriate:' and that, com- mencing on or about January 10. 1979. and at all times thereafter, Respondent has refused and contin- ues to refuse to bargain collectively with the Union as the exclusive bargaining representative of its employ- ees in the unit set forth herein below. On March 26, 1979, Respondent filed its answer to the complaint t Official notice is taken of the record in the r-epresentation proceeding, Case 3 RC 7275. as the term "record" is defined in Sees. 102.68 and 102.69tg) of the Board's Rules and Regulations. Series 8 as amended. See LTV Electrosystenms, Inc., 166 NLRB 938 (1967). enid. 388 F.2d 683 (4th Cir 1968): Golden Age Beverage Co. 167 NLRB 151 (1967). enfd. 415 F.2d 26 (5th Cir. 1969); Inrertpe Co v. Penelio, 269 F.Supp. 573 (D.C Va. 1967); Follerr Corp., 164 NLRB 378 (1967). enld. 397 F.2d 91 (7th Cir 1968)1 Sec 9(d) of the NLRA, as amended. Respondent requests that all affidavits and other documentary evidence secured in the investigation of the challenge in the representation case he made a part of the record herein. and it alleges the Board issued its certifica- tion without the full record which was compiled and instead relied upon the Regional Director in violation f the Board's Rules and Regulations. The request for the records is denied. The Board has held that such material is not a part of the record in either the unfair labor practice case or its under- lying representation case "within the meaning of Section 102.68 and 102.45(b) of the Rules and Regulations of the Board, nor are such documents Imaterials related to the representation casel encompassed within the re- quirements of Section 9(d) of the Act." See LT)V Electr)srstenLrt Inc.. supra at 938. fn. 2 Golden Age Beverage Co.. supra. admitting in part and denying in part the allegations of the complaint, submitting affirmative defenses, and requesting that the complaint be dismissed in its en- tirety. Thereafter, on April 16, 1979, the General Counsel, by counsel, filed with the Board in Washington, D.C., with exhibits attached, a motion to transfer proceed- ing to the Board, to strike respondent's affirmative defenses, and for Summary Judgment and issuance of the Board's Decision and Order. The General Coun- sel submits, in effect, that Respondent in its answer is attempting to relitigate in the instant proceeding, the issues which were previously litigated and resolved by the Board in the prior representation proceeding, C'ase 3 R(' 7275: that Respondent does not allege the existence of' newly discovered or previously un- available evidence or special circumstances which would justify relitigation of said issues; and that Re- spondent's answer raises no factual issues warranting a hearing. Counsel for the General Counsel further submits that, based upon Respondent's admission that it has refused to recognize and bargain with the Union. and certain exhibits attached to the motion, it is conclusively established that Respondent violated Section 8(a)(1 I) and (5) of the Act as alleged in the complaint. She therefore moves the Board for its or- der transferring this proceeding to the Board,. striking Respondent's affirmative defenses within its answer, granting summary judgment in favor of the General Counsel, finding that no litigable issue of fact is raised by Respondent's alfirnmative defenses to the com- plain;: warranting a hearing for the taking of evi- dence, and finding that Respondent has violated the Act as alleged in the complaint, and she requests that a Board [Decision and Order be issued containing such findings of fct and conclusions of law and an appropriate remedial order. Subsequently, on April 23, 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 be granted. Respondent there- after filed a brief in opposition to the General Coun- sel's Motion for Summary Judgment and an affidavit. 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 To Strike Respondent's Affirmative Defenses and Motion for Summary Judgment It is counsel for the General Counsel's basic posi- tion that all issues in dispute were decided in the rep- 243 NLRB No. 85 558 I-II)'S LtJ.NCH STAND resentation proceeding and that she is entitled to summary judgment as a matter of' law. With respect to her motion to strike Respondent's affirmative de- fenses it is counsel f'r the General Counsel's conten- tion that such constitute false or sham pleadings. While, for the reasons stated below, we find that Re- spondent's affirmative defenses do not present a meri- torious defense to the allegations of the complaint, we do not believe such defenses should be struck in that such could be viewed as an endeavor by Respondent to preserve a position, albeit, in our view, an errone- ous one. See Rod-Ric Corporation. 171 NLRB 922 (1968). The motion to strike is denied. In its answer to the compaint and in its brief and affidavit in opposition to the General Counsel's Mo- tion for Summary Judgment. Respondent admits its refusal to bargain but contends it is not obligated to bargain because the unit for which the Union is certi- fied is not appropriate. In this regard. Respondent as an affirmative defense, contends the Union's certifica- tion is invalid because Robert M. Held was excluded from the unit as a supervisor: the Board. contrary to its own Rules and Regulations. failed to conduct a hearing thereby depriving Respondent of the right to cross-examination and other procedural rights of due process; the Regional D)irector failed to note the affi- davits upon which his Report on Challenges was based and failed to forward such documents to the Board; and the Board failed to have before it such record when it decided the Decision and Certification of Representative: and finally the Regional Director failed to comply with Respondent's request for affida- vits and documents compiled in the representation case. The General Counsel contends Respondent is improperly seeking to relitigate issues which were raised and decided in the underlying representation case. We agree with the General Counsel. Review of the record herein, including the record in Case 3-RC 7275, reveals that on July 17. 1978. in the representation proceeding, the Union sought to repre- sent certain employees of Respondent, and that pur- suant to a Stipulation for Certification Upon Consent Election, approved by the Regional Director on Au- gust 7, 1978. an election by secret ballot was con- ducted on August 29, 1978, under the supervision of the Regional Director in the unit set forth herein. The tally of ballots revealed that six were cast for, and four against, the Union. There were two challenged ballots, a number sufficient to affect the results. On October 13, 1978. following an investigation of the challenges, the Regional Director issued his report recommending to the Board, inter alia. that the chal- lenge to the ballot of Robert M. Heid be sustained. Thereafter, Respondent filed exceptions thereto, with the Board in Washington. D.C(.? 2 and the Board on December 14, 1978. issued a I)ecision and Certifica- tion of Representative wherein it adopted the Re- gional Director's recommendation on the disposition of said challenges and certified the Union as the col- lective-bargaining representative of Respondent's em- ployees in the unit described herein. On or about January 8, 1979. Respondent filed with the Board a "Motion for a Hearing and Demand for Production of Documents." B letter dated January 22. 1979. the Board denied Respondent's motion for a hearing with respect to the challenged ballot of' Robert M. Heid. as it was untimely (the request for hearing should have been made by December 27. 1978), and directed Re- spondent to file its request for the production of docu- ments with the Regional Director pursuant to Section 102.17(c) of the Board's Rules and Regulations. On February 5 1979. the Respondent filed with the Re- gional Director a "Demand for Production of' Docu- ments." demanding that copies of all afidavits state- ments, and notes from interviews, memoranda, and other documents and records utilized by the Regional Director during his investigation of the challenged ballots be made available for inspection and copsing. By letter dated Fehbruarv 14, 1979. the Regional [)i- rector advised Respondent that its demand for pro- duction oft documents under the Freedom of Informa- tion Act (F-OIA) was denied because the documents were exempt from disclosure based on exemptions 7(A) ()l, and ()). O()n March 7 1979. Respondent, in a document entitled "I)emand for Production of' Documents." dtemanded certain int'ormation concern- ing the aftidavits and documents, including the num- ber of affidavits obtained in the investigation of the challenged ballots and asking whether the affidavits and documents were forwarded to the Board. and a copy of' any transmittal letter or other written conm- munication. forwarded to the Board. in connection with the Regional D)irector's Report on Challenges to the Board. By letter dated March 13. 1979, as noted more fully in the record, the Regional Attorney re- sponded to said demand and denied said request stat- ing the information sought was either exempt under Exemption 7(A) of FOIA, or nonexistent. The record further indicates that Respondent made no effort to pursue its remedies under FOIA. Thus. the Regional Office's denial of Respondent's request for information clearly stated that under Section 102.117(c)(2)(ii) of the Board's Rules and Regula- tions. Series 8 as amended. Respondent had 20 days to appeal the Regional Office's ruling to the General 2 Said exceptions. dated October 25. 1978. did not request a hearing on the issue o whether the challenge to the ballot off Robert M Held should he sustained. 559 I)E('ISIONS OF NATIONAL L.ABOR RELATIONS BOARD Counsel. However, there is no evidence of such an appeal to the General Counsel nor of' any further at- tempts to obtain the information prior to the instant request. Accordingly, we conclude that Respondent's failure to comply with the Board's Rules and Regula- tions in seeking the information requested precludes it from now asserting that the denial violated the Freedom of Information Act and/or Respondent's right to due process of law.' Respondent now also contends that it was denied due process by the Board's refusal to hold a hearing, in the underlying representation case, on the matter of the challenged ballot, although it failed to make such a request in its exceptions to the Regional Direc- tor's Report on Challenges. It is well established that a party is not entitled to a hearing on a challenged ballot absent a showing of substantial and material issues.4 Here it is implicit that the Board, in adopting the Regional's Director's Report on Challenges, found that no hearing was warranted. Further, the Board has held, with judicial approval, that eviden- tiary hearings are not required in unfair labor prac- tice cases and summary judgment cases where, as here, there are no substantial or material facts to be determined.5 It thus appears that Respondent is at- tempting to relitigate issues raised and resolved in the underlying representation case. It is well settled that. in the absence of newly dis- covered or previously unavailable evidence or special circumstances, a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to reliti- gate issues which were or could have been litigated in a prior representation proceeding. 6 All issues raised by Respondent in this proceeding were or could have been litigated in the prior repre- sentation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or previ- ously unavailable evidence, nor does it allege that any special circumstances exist herein which would re- quire the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is prop- erly 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: 3 Ronald Hackenherger dih/a Ron' Trucking Service, 236 N.RB 1065 (1978), and cases cited in n. 6. sNalional Bervlhia Corporation, 222 NLRB 1289 (1976). and cases cited therein. 5andy Hardware Wholesale, Incr.. 222 NLRB 373 (1976). and cases cited therein. t See Pittshurgh Plate Glass Co. v. .I..R.B.. 313 U.S. 146. 162 (1941): Rules and Regulations of the Board. Secs. 102.67(t) and 102.69(c). FINDIN(S OF FA(I I. I1ti BUSINI-SS () RESPONI)INI' Respondent is. and has been at all times material herein, an individual proprietor doing business under the trade name and style of Heid's Lunch Stand, with its principal office and place of business in Liverpool. New York, where it is engaged in the retail sale of fiood and related products. During the past year, a representative period, Respondent in the course and conduct of its business received gross revenues in ex- cess of $500,000, and during said period Respondent purchased goods and materials in New York State valued in excess of $25,000. which goods and materi- als originated outside New York State. We find, on the basis of the foregoing. that Respon- dent 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. II1. Il I.ABIOR ORANIZAI'ION INV()I.VI) Hotel. Motel. Restaurant. Cafeteria Employees and Bartenders Union. Local 150, is a labor organization within the meaning of Section 2(5) of the Act. I. 111tE I NAIR I ABlOR PRA(FI S A. 71h Rprescntaliotn Proceeding 1. The unit The following employees of Respondent constitute a unit appropriate foir collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time employees en- gaged in the process of selling food and bever- ages including counter personnel, cooks and por- ters employed at Respondent's Liverpool, New York premises, excluding guards and supervisors as defined in the Act. 2. The certification On August 29, 1978, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Di- rector for Region 3, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the col- lective-bargaining representative of the employees in said unit on December 14, 1978, and the Union con- 560 H1t D'S IL'N('t SIANID tinues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request T7X Bargain and Respondent's Relitsa/ Commencing on or about JanuarN 10, 1979, and at all times thereafter, the Union has requested Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the emplo 3- ees in the above-described unit. Commencing on or about January 10. 1979, and continuing at all times thereafter to date. Respondent has refused, and con- tinues to refuse, to recognize and bargain with the Union as the exclusive representative tfir collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since January 10. 1979. and at all times thereafter. refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appropri- ate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (I) of the Act. IV. TE EFFECT OF THE L:NFAIR I.ABOR PRA('II(IES UPON (O()MMER('E The activities of Respondent set forth in section III, above, occurring in connection with its operations described in section I., above, have a close, intimate. and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V\. IE RNM[)DY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing 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 ap- propriate unit, and, if an understanding is reached. embody such understanding in a signed agreement. In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected bargaining agent for the period provided b5 law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commences to bargain in good faith with the Union as the recog- nized bargaining representative in the appropriate unit. See Mar-Jac Poultrn (Comrparn. Inc.. 136 NLRB 785 (1962); Commercn e /('oipart /h/a amar IIo1ll, 140 NLRB 226. 229 (1962). enftd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett (on- sItrution (Coelpac. 149 NLRB 1419, 1421 (1964). end. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: C(O)N( I SINS (I LA\ I Valentine A. Heid Estate. First Trust & Deposit Co.. Trustee. d/b/a Heid's Lunch Stand. is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Hotel, Motel. Restaurant, Cafeteria mploees and Bartenders Uinion, Local 150, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time employees engaged in the process of selling food and beverages including counter personnel, cooks, and porters em- ploNed at the Respondent's l.iverpool. New York. premises, excluding guards and supervisors as defined in the Act, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since December 14, 1978, the above-named la- bor organization has been and now is the certified and exclusive representative of all emplo'ees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. B refusing on or about January 10. 1979. and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Re- spondent in the appropriate unit. Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. B the aforesaid refusal to bargain. Respondent has interfered with, restrained, and coerced. and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Sec- tion 7 of the Act, and thereby has engaged in and is engaging in untair labor practices within the meaning of Section 8(a)( I) of the Act. 7. The aforesaid unfair labor practices are unlair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDE R Pursuant to Section l0(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent. Val- entine A. Hieid state. First Trust & Deposit (Co.. Trustee. d/b/ a leid's lunch Stand. iverpool, New York. its officers, agents. successors. and assigns. shall: 561 I)t(-'ISIONS OF: NAIIONAI L..IBOR RELATIONS BOARI) I. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages. hours, and other terms and con- ditions of enployment with Hotel. Motel, Restaurant Cafeteria Employees and Bartenders Union,. Local 150. as the exclusive bargaining representative of' its employees in the fbllowing appropriate unit: All full-time and regular part-time employees en- gaged in the process of selling food and bever- ages including counter personnel, cooks, and porters employed at Respondent's Liverpool, New York premises, excluding guards and super- visors as defined in the Act. (b) In any like or related manner interfering with. restraining, or coercing employees in the exercise 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 understand- ing is reached, embody such understanding in a signed agreement. (b) Post at its Liverpool, New York. premises cop- ies of the attached notice marked "Appendix."7 Cop- ies of said notice, on forms provided by the Regional Director for Region 3, after being duly signed by' Re- spondent's representative, shall be posted by Respon- dent immediately upon receipt thereof: and be main- tained 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 Respondent to insure that said I In the event that this Order is enforced b) a Judgment ofi a United States Court of Appeals, the words in the notice reading "PI'ted h) Order of the National Labor Relalions Board" shall read "Posted Pursuant to a Judgment or the United States Court 1of Appeals l, nforcing an Order of the National Labor Relations Board.' notices are not altered. defaced, or covered by any other material. (c) Notily the Regional irector for Region 3. in writing, within 20 days from the date of this Order. what steps have been taken to comply herewith. APPIN I)1X No(1I: Tl'o [FPIIo.()YI:S POSIlI) BY ORIIR ()I lltl NAII()NAI. LAB()R RI.AII()NS BOARD An Agcncy of the United States Government WI WIll. NOI refuse to bargain collectively concerning rates of pay. wages, hours, and other terms and conditions of employment with Hotel. Motel, Restaurant, Cafeteria Employees and Bartenders Union, Local 150 as the exclusive representative of the employees in the bargaining unit described below. WlI WIl.l N in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WL wii.., upon request, bargain with the above-named Union, as the exclusive representa- tive of all employees in the bargaining unit de- scribed below, with respect to rates of pay', wages. hours, and other terms and conditions 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 employees engaged in the process of selling food and bev- erages including counter personnel, cooks, and porters employed at the Liverpool, New York premises, excluding guards and supervisors as defined in the Act. VAi I:NIINI A. [lIll E SIAIH: FIRSI TRUSI & DPo)s I C.(). TRUSTEE, 1)/B/A HEI. 'S L:N(i SANI) 562