Dobbs Houses, Inc.

546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dobbs Houses, Inc. and General Teamsters Local Un- ion No. 528, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 10-CA-8567 February 16, 1971 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS Upon a charge filed on September 3, 1970, by Gen- eral Teamsters Local Union No. 528, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and duly served on Dobbs Houses, Inc., herein called the Respondent, the General Coun- sel of the National Labor Relations Board, by the Regional Director for Region 10, issued a complaint on September 30, 1970, 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 a Trial Examiner were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on August 26, 1970, following a Board election in Case 10-RC-7884 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about September 21, 1970, 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 October 12, 1970, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint, and requesting that the complaint be dismissed. On October 19, 1970, counsel for the General Counsel filed with the Regional Director a Motion for Summary Judgment and, by letter of the same date, the Regional Director referred the motion to the Board. Counsel for the General Counsel submits that the Respondent, in its answer, is attempting to relit]- gate issues which were raised and decided by the Official notice is taken of the record in the representation proceeding, Case 10-RC-7884 as the term "record" is defined in Sees 102 68 and 102 69(f) of the Board's Rules and Regulations, Series 8, as amended See LTV Electrosystems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (CA 4, 1968), Golden Age Beverage Co, 167 NLRB 151, Intertype Co v Penello, 269 F Supp 573 (D C Va, 1967), Follett Corp, 164 NLRB 378, enfd 397 F 2d 91 (C A 7, 1968), Sec 9(d) of the NLRA Board in the prior representation proceeding, and that there are no issues of fact or law requiring a hearing in the instant case. Counsel for the General Counsel moves that the Board issue an order that cause be shown, if any there be, why a Decision and Order should not be issued finding violations as alleged in the complaint, and that such Decision and Order be duly issued thereafter. Subsequently, on November 20, 1970, 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 response to Notice to Show Cause and objection to transference of this proceeding. 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 powers in connection with this case to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: RULING ON THE MOTION FOR SUMMARY JUDGMENT The record in Case 10-RC-7884 reveals that in the election conducted on December 4, 1969, by the Re- gional Director in the single combined unit found appropriate, a majority of the voters cast valid votes for the Union 2 which was, subsequently, certified by the Board on August 26, 1970. In its answer to the complaint and in its response to the Notice to Show Cause, the Respondent again raises issues litigated and determined by the Board in the representation case, 10-RC-7884, namely, the ap- propriateness of the single combined unit of its em- ployees, rather than of two separate units of catering employees, and terminal and restaurant employees as urged by the Respondent; the procedural rulings of the Regional Director which affected the Respondent's participation in the hearing on unit; and the alleged unwarranted limitation of the hearing on objections. In addition, the Respondent now urges that since the election the following "unusual circumstances" have occurred which, within the meaning of Ray Brooks v. N. L. R. B., 348 U.S. 96, warrant its conten- tion concerning the Union's majority status presumed by virtue of the Board election and certification. Sub- sequent to the election of December 4, 1969, the Un- ion on May 8, 1970, allegedly instituted a recognitional strike against the Respondent which ended in November 1970, after issuance of the Board certification. Approximately 380 of the unit employ- 2 There were approximately 862 eligible voters of whom 389 cast valid votes for, and 106 cast ballots against, the Union and 60 cast challenged ballots There were seven void ballots The challenges were not sufficient in number to affect the results of the election 188 NLRB No. 84 DOBBS HOUSES, INC. ees who participated in the strike are alleged to have been replaced and, therefore, according to the Re- spondent, it is reasonable to assume that the only employees who remained with the Respondent are those who voted against the Union or those hired after the election but who had no opportunity to vote in the election.3 As a result of these alleged "unusual circum- stances," the Respondent contends that the character and conduct of its w$rk force has dramatically changed so that the Union's majority status, assuming it ever existed, no longer exists. We find no merit in the Respondent's contention that the circumstances relied on constitute "unusual circumstances" within the Ray Brooks rule.4 In Ray Brooks itself, the Supreme Court refused to permit an employer to question a union's majority status where a week after the Board election establishing the union's majority by an 8 to 5 vote and the day before the certification, nine of the employees in the bargain- ing unit advised the employer that they no longer wished to be represented by the union. Further, we find that, in the circumstances of this case, replacement of some 380 striking unit employees does not provide a reasonable basis for believing that the Union has lost its majority since the election. The Board has long held, with court approval, that the permanent replacement of economic strikers is not an "unusual circumstance" that would justify a refusal to bargain with the union during the certification year.' We note also that the Respondent gave no con- sideration to Board doctrine, established in Pioneer Flour Mills, 174 NLRB No. 174, that all strikers, not only the 123 strikers whom the Respondent reem- ployed, but also the replaced strikers, must be includ- ed in determining the majority status of the Union during the 6-month strike herein. Accordingly, we find that the Respondent has failed to establish such "unusual circumstances" as to justify its attack upon the majority status of the Union which is presumed to continue to exist. As indicated above, all other issues raised by the Respondent in its answer and response have been litigated and determined in the representation case, 10-RC-7884. It is well settled that in the absence of newly discov- ered or previously unavailable evidence or special cir- cumstances 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.' 3 The Employer avers that when the strike was abandoned in November 1970, only 123 employees who participated in the strike were reemployed 4 Ray Brooks v NLRB , 348 U S 96 5 Reliance Clay Products Company, 115 NLRB 1736-47, enfd 245 F 2d 599 (CA 5) 6 See Pittsburgh Plate Glass Co v NLRB , 313 U S 146, 162 (1941), Rules and Regulations of the Board , Secs 102 67(f) and 102 69(c) 547 All issues raised by the Respondent in this proceed- ing except as to the alleged "unusual circumstances" which we have found to be without merit, were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discovered or,.previous- ly 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 the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. We shall, accordingly, 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 THE RESPONDENT Respondent is, and has been at all times material herein, a Tennessee corporation, with its principal of- fice and place of business located in Memphis, Ten- nessee, and is engaged in the operation of restaurants and airline food catering services in several States, including Georgia. Respondent, at all times material herein, main- tained and operated airline food catering services, res- taurants, lounges, snack bars, and gift shops at the Atlanta, Georgia, Municipal Airport. Only these op- erations are involved in these proceedings. Respondent, during the past calendar year, which period is representative of all times material herein, received more than $50,000 for food catering services performed for interstate airlines, including, but not limited to, Delta Airlines and Eastern Airlines, which utilize the Atlanta, Georgia, Municipal Airport. 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 th Act, and that it will effectu- ate the policies of the Act to assert jurisdiction herein. II THE LABOR ORGANIZATION INVOLVED General Teamsters Local Union No. 528, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent consti- tute a unit appropriate for collective-bargaining pur- poses within the meaning of Section 9(b) of the Act: All employees of the Employer's catering, res- taurant, lounge, snack bar and gift shop opera- tions at the Atlanta, Georgia, Municipal Airport, excluding office clerical employees, professional ,employees, guards, Marina Thomas and all other supervisors as defined in the Act. 2. The certification On December 4, 1969, 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 10, designated the Union as their representative for the purpose of collective bargaining with the Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on August 26, 1970, and the Union contin- ues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about August 28, 1970, and at all times thereafter, the Union has requested the Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about September 21, 1970, and continuing at all times thereafter to date, the Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collec- tive bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since September 21, 1970, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- tices 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 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 THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the 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 appro- priate unit and, if an understanding is reached, em- body 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 select- ed bargaining agent for the period provided by law, we shall construe the initial period of certification as beginning on the date Respondent commences to bar- gain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar Jac Poultry Company, Inc., 136 NLRB 785; Com- merce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Dobbs Houses, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. General Teamsters Local Union No. 528, affiliat- ed with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees of the Employer's catering, restau- rant, lounge, snack bar and gift shop operations at the Atlanta, Georgia, Municipal Airport, excluding office clerical employees, professional employees, guards, Marina Thomas and all other 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 August 26, 1970, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about September 21, 1970, and DOBBS HOUSES, INC. 549 at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Respon- dent in the appropriate unit, Respondent has engaged 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 to them in Section 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 unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. posted by Respondent immediately upon receipt thereof, and be maintained 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 Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 7 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 be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals Enforcmg an Order of the National Labor Relations Board " ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that Respondent, Dobbs Houses, Inc., its officers, agents, successors and as- signs, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and condi- tions of employment, with General Teamsters Local Union No. 528, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining repre- sentative of its employees in the following appropriate unit: All employees of the Employer's catering, res- taurant, lounge, snack bar and gift shop opera- tions at the Atlanta, Georgia, Municipal Airport, excluding office clerical employees, professional employees, guards, Marina Thomas and all other supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the rights guar- anteed 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 operations at Atlanta, Georgia, Mu- nicipal Airport, copies of the attached notice marked "Appendix."7 Copies of said notice, on forms provid- ed by the Regional Director for Region 10, after being duly signed by Respondent's representative, shall be APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS 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 General Teamsters Local Union No. 528, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive 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 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 representative of all employees in the bargaining unit described 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 employees of the Employer's catering, restaurant, lounge, snack bar and gift shop operations at the Atlanta, Georgia, Municipal Airport, excluding office clerical employees, professional employees, 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD guards, Marina Thomas and all other supervisors This is an official notice and must not be defaced as defined in the Act. by anyone. This notice must remain posted for 60 consecutive DOBBS HOUSES, INC. days from the date of posting and must not be altered, (Employer) defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Peachtree Building, Room 701, 730 Dated By Peachtree Street NE., Atlanta, Georgia 30308, (Representative) (Title) Telephone 404-526-5760.