Sambo's Restaurant, Inc.

SAMBO'S RESTAURANT INC. Sambo's Restaurant, Inc. and Hotel and Restaurant Employees and Bartenders Union, Local 28, AFL- CIO. Case 32-CA 1647 July 27, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PNEI.I.() AND TRUESDAI.F Upon a charge filed on March 21, 1979, by Hotel and Restaurant Employees and Bartenders Union, Local 28, AFL-CIO, herein called the Union. and duly served on Sambo's Restaurant. Inc., herein called Respondent, the General Counsel of the Na- tional Labor Relations Board, by the Acting Regional Director for Region 32, issued a complaint and notice of hearing on March 30. 1979. against Respondent, alleging that Respondent had engaged in and was en- gaging in unfair 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 proceed- ing. With respect to the unfair labor practices, the com- plaint alleges in substance that on January 26. 1979, following a Board election in Case 32 RC 91 (for- merly Case 20-RC 14414), the Union was duly certi- fied as the exclusive collective-bargaining representa- tive of Respondent's employees in the unit found appropriate:' and that, commencing on or about March 14, 1979, and at all times thereafter. Respon- dent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has re- quested and is requesting it to do so. Respondent filed a timely answer to the complaint admitting in part. and denying in part. the allegations in the complaint. On May 14, 1979. counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on May 22, 1979, the Board issued as 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 response to I Official notice is taken of the record in the representation proceeding. Case 32-RC-91 (formerly Case 20-RC 14414). as the term "record" is de- fined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations, Series 8. as amended. See LTV Elecrosvsrtemy, 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); Intertvpe Co. s. Penello. 269 F. Supp. 573 (D.C.Va., 1967); Follerr Corp, 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. the Notice To Show Cause, entitled "Opposition to General Counsel's Motion for Summary Judgment." 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 bor Summary Judgment In its answer to the complaint and the Notice To Show Cause, Respondent essentially contests the va- lidity of the Union's certification. Respondent's posi- tion in this regard is based on its objections to the election, on which a hearing was held, which is es- sence allege, inter alia, that the unit employees were coercively influenced by Respondent's supervisors who actively campaigned on behalf of the Union. Re- spondent further alleges that the Board failed to con- sider the evidence of improper supervisory support of the Union developed at the hearing on objections. In his Motion for Summary Judgment, the General Counsel contends that there are no factual issues re- quiring a further hearing and that Respondent is at- tempting here to relitigate issues which were raised and decided in the underlying representation case. We agree with the General Counsel. Our review of the record herein, including that in the underlying representation proceeding. Case 32 RC 91 (formerly Case 20 RC 14414), shows that the election in this matter, held on September 14, 1977, pursuant to a Stipulation for Certification Upon Con- sent Election, resulted in a vote of 20 for, and 8 against, the Union. There were no challenged ballots. Thereafter, Respondent filed 23 objections to conduct affecting the results of the election. Respondent's ob- jections alleged, inter alia. that the Union had made improper promises to unit employees, and, by various means, had caused an atmosphere of total confusion to exist among employees on the day of the election. The objections further alleged that the Board agent in charge of the election improperly interfered with the fair operation of the election. Additionally. it was contended by Respondent that unit employees were coercively influenced by supervisors of Respondent acting on behalf of the Union. After an investigation, the Regional Director for Region 32 issued the Report on Objections. Order. and Notice of Hearing in which it was recommended that Respondent's objections to the election be over- ruled in part and that a hearing be held with respect to the remaining objections. Thereafter, Respondent filed exceptions to the Report on Objections, Order, and Notice of Hearing, contending that the Regional Director erred in overruling certain objections or, in 243 NLRB No. 115 751 I)I[('ISIONS OF NATIONAL I.ABOR REi.A IONS BOARDI the alternative, failing to recommend a hearing thereon. On March 15. 1978, the Board issued a Deci- sion and Order Directing Hearing adopting the Re- gional Director's findings and recommendations. On May 30, 1978, a hearing on Respondent's objections was held before a Hearing Officer who subsequently issued his Report on Objections, recommending that Respondent's objections be overruled in their en- tirety. Thereafter, Respondent filed exceptions to the Hearing Officer's Report on Objections, contending that the Hearing Officer erred in recommending that its Objections 21 and 23 be overruled. Those objec- tions allege that employees of Respondent who are supervisors within the meaning of the Act influenced employees to support and vote for the Union by openly soliciting such support: subjected employees to abuse, harassment, coercion, and intimidation in order to cause them to vote for the Union: and voted in the election. On January 26, 1979, the Board issued a Supple- mental Decision and Certification of Representative 2 in which, after reviewing the record in light of the exceptions and brief, it adopted the recommendations of the Hearing Officer, and certified the Union as the exclusive bargaining representative of the employees in the unit stipulated to be appropriate. The sole issue raised by Respondent herein is the validity of the cer- tification in the underlying representation case. It thus appears that Respondent is endeavoring here to relitigate issues which had been raised and deter- mined in the underlying representation proceeding. 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 relitigate issues which were or could have been litigated in a prior representation proceeding. 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. 2Neither the Decision and Order Directing Hearing. dated March 15, 1978, nor the Supplemental Decision and Certification of Representative appears in volumes of Board Decisions. ISee Pittshurgh Plate Glass Co. v. Nl..R..., 313 U.S. 146, 162 (1941): Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). On the basis of the entire record, the Board makes the following: FINDIIN(S ()I FA(I I. liII BSSINISS () RP()NI)IN I Respondent, a California corporation with an office and place of business located in San Pablo. Califor- nia, is engaged in the operation of a restaurant. Dur- ing the past 12 months, a representative period. Re- spondent, in the course and conduct of its business operations, derived gross revenues in excess of $500,000. During the same period, Respondent pur- chased and received goods or services valued in ex- cess of $5,000 which originated outside that State of California. 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. 11. I11 I.I ABOR OR(;ANI/.A IO)N INVOI.VII) Hotel and Restaurant Employees and Bartenders U nion, Local 28. AFI. ('1O, is a labor organization within the meaning of Section 2(5) of the Act. Ill. [Il: UlNIAIR I AB()R PRA('11('[IS A. 7he Repsrcvenltllion Proceet'ding I. The unit The fbIllowing employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All cooks, waiters, waitresses, cashier hostesses. dishwashers and bus-persons employed by Re- spondent at its San Pablo, California, restaurant; but excluding guards and supervisors as defined in the National Labor Relations Act, as amended. 2. The certification On September 14, 1977, a majority of the employ- ees of Respondent in said unit, in a secret-ballot elec- tion conducted under the supervision of the Regional Director for Region 20, 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 752 SAMBO()'S RSI'At RAN I. IN(' said unit on January 26. 1979. and the lUnion contin- ues to be such exclusive representative within the meaning of Section 9(a) of' the Act. B. 'The' Rcquc.sl 7 Biariain tand Rc'pondetnl's Ret/isal Commencing on or about FebruarN 7. 1979, alnd at all times thereafter. the Union has requested Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative otf all the employ- ees in the above-described unit. Commencing on or about March 14. 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 br collective bargaining of all employees in said unit. Accordingly. we find that Respondent has, since March 14, 1979. and at all times thereafter. refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal. Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and () of the Act. Iv. tl }FF (I' OF rIIE 'NI:AIR I.AO()R PRA('II('FS UPON ('OMNMER('l The activities of Respondent, set forth in section III, above, occurring in connection with its operations described in section 1, 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. liE RMI'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 (11) 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 by 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 Pou/lrl Company, Inc., 136 NLRB 785 (1962): C'ommeLrce Companlv d1/h/a Lamar Hotel. 140 NLRB 226. 229 (1962). enfd. 328 F.2d 600 (5th Cir. 1964). cert. denied 379 .S. 817: Burnet (on- .truction ( 'ompat'v. 149 N R B 1419. 1421 (1964). enfd. 350 ;.2d 57 (10th ('ir. 1965). The Board, upon the basis of the tforegoing facts, and the entire record, makes the t`llovineg: (ON( I Sl)NS OF I A\ I. Sambo's Restaurant. Inc.. is an emlplocer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Hotel and Restaurant Employees and Bartend- ers lUnion. Local 28. AF 1-CIO, is a labor rganiza- tion within the meaning of Section 2(5) of' the Act. 3. All cooks, waiters, waitresses. cashiers hostesses. dishwashers. and bus-persons employed bh Respon- dent at its San Pablo, C'alitfornia, restaurant, hut ex- cluding guards and supervisors as defined in the Act. constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act. 4. Since January 26, 1979, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the atfore- said appropriate unit ft'r the purpose oft collective bargaining within the meaning of' Section 9(a) of the Act. 5. By refusing on or about March 14. 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. By 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 unfair labor practices within the meaning of Section 8(a)(1 ) of the Act. 7. The aforesaid untfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National l.abor Relations Act, as amended. the National I.abor Rela- tions Board hereby orders that the Respondent. Sanm- bo's Restaurant. Inc.. San Pablo. ('alitbrnia. its ottli- cers agents successors, and assigns. shall: 1. ('ease and desist froim: (a) Refusing to bargain collectively concerning rates of pay. wages. hours, and other terms and con- ditions of' employment with Hotel and Restaurant 753 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employees and Bartenders Union, Local 28, AFL- CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All cooks, waiters, waitresses, cashier hostesses, dishwashers and bus-persons employed by Re- spondent at its San Pablo, California restaurant; but excluding guards and supervisors as defined in the National Labor Relations 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 San Pablo, California, office and place of business copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 32, af- ter being duly signed by Respondent's representative, shall be posted by Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. 4 In the event 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 Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." (c) Notify the Regional Director Region 32, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX NTIC('E To EMPLO()YEES POSTED BY ORDER OF IHE NAII()NAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL Nor refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Hotel and Restaurant Employees and Bartenders Union, Local 28, AFL-CIO, as the exclusive rep- resentative of the employees in the bargaining unit described below. WE WIl.L NOT 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. WE WILL, 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 cooks, waiters, waitresses, cashier host- esses, dishwashers and bus-persons employed by us at our San Pablo, California, restaurant; but excluding guards and supervisors as de- fined in the National Labor Relations Act, as amended. SAMBO'S RESTAURANT, INC. 754