The Horn & Hardart Co.

146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Horn & Hard art Company and Restaurant Cashiers Association. Case 2-CA-11726 May 23, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS Upon a charge filed by the Restaurant Cashiers Association, herein called the Union, the General Counsel for the National Labor Relations Board, by the Regional Director for Region 2, issued a complaint dated February 27, 1969, against The Horn & Hardart Company, herein called Respondent, alleging that the Respondent did engage in and is eng aging in unfair labor practices within the meaning of Section 8(aX5) 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 were duly served upon Respondent. With respect to the unfair labor practices, the complaint alleges in substance, that on January 3, 1969, a majority of the employees in a voting group found appropriate by the Board,' in a secret ballot election conducted under the supervision of the Regional Director for Region 2 of the National Labor Relations Board designated and selected the Union as their representative for the purpose of collective bargaining, and on January 13, 1969, the Union was certified. The complaint further alleges that on January 14, 1969, the Respondent refused and since said date has continued to refuse, to recognize the Union or to engage in collective bargaining with it as such exclusive collective-bargaining representative although the Union has requested it to do so. On March 5, 1969, the Respondent filed its answer, admitting in part, and denying in part the allegations of the complaint, and requesting that the complaint be dismissed. Thereafter, the General Counsel filed with the Regional Director a Motion for Summary Judgment and a petition in support of his motion asserting that, as the denials and additional statements set forth in Respondent's Answer raise no issues which have not been litigated and determined by the Board in Case 2-RC-14888, there are no issues requiring a hearing, and praying the issuance of a Decision and Order finding the violations as alleged in the complaint. On April 7, 1969, 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 . On April 9, 1969, Respondent filed Respondent's Motion to Dismiss Motion for Summary Judgment or in the Alternative to 'Decision and Direction of Election issued December 3, 1968, 173 NLRB No. 164. Transfer It to the Trial Examiner's Division. Thereafter, on April 17, 1969, the Respondent filed its Answer to General Counsel's Motion for Summary Judgment incorporating by reference its April 9, 1969, motion. On April 18, 1969, the Union filed its Statement of Charging Party in Support of the Motion for Summary Judgment, and in Opposition to Respondent Motion for Alternative Relief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel. Upon the entire record in this case, the Board makes the following: Ruling on the Motion for Summary Judgment The record before us establishes that on April 16, 1968, the Union filed a petition in Case 2-RC-14888 seeking to represent all cashiers employed by the Respondent. On December 3, 1968, the Board, after a hearing issued a Decision and Direction of Election wherein the Board directed an election among the following unit of employees: All unrepresented employees including head cashiers, relief head cashiers, assistant cashiers, relief assistant cashiers, and PM cashiers, employed by Employer in its automat-cafeterias, located in Manhattan, Queens, Long Island (Garden City), Brooklyn, Westchester County (Cross County Center and White Plains) and New Jersey (Paramus) excluding all represented employees, office employees, retail store employees not employed in automat-cafeterias or service restaurants, employees engaged in industrial feeding, maintenance employees, special officers, watchmen, guards, pensioners, executives and supervisors. On January 3, 1969, pursuant to the Decision and Direction of Election, an election was held in which the eligible voters were given a choice of voting for Cafeteria Employees Union, Local 302 (herein called Local 302), the Union, or neither. A majority of the eligible voters cast ballots for the Union as the exclusive collective-bargaining representative in the unit described above. On February 10, 1969, Respondent filed with the Board Employer's Motion to Reopen and Reconsider in Case 2-RC-14888. On February 27, 1969, the Board denied Employer's Motion to Reopen and Reconsider as it contained nothing not previously considered by the Board. On February 24, 1969, Local 302 filed with the Board Intervenor's Motion for Reconsideration and/or Clarification in Case 2-RC-14888. On March 27, 1969, the Board denied Intervenor's motion for reconsideration as it contained nothing not previously considered by the Board, and denied Intervenor's motion for clarification as it failed to disclose with the specificity required by Section 176 NLRB No. 20 THE HORN & HARDART CO. 102.61 (d) of the Board's Rules and Regulations, Series 8, as amended, sufficient grounds for granting such a motion. On January 6, 1969, the Union requested Respondent to bargain collectively. This request was refused on or about January 14, 1969. On January 17, 1969, the Union filed the charge upon which the complaint was predicated. In its Answer to General Counsel's Motion for Summary Judgment, Respondent contends in substance: (1) that it has newly discovered evidence not presented at the hearing in Case 2-RC-14888 that Local 302's President, Joseph Fox, would testify that certain matters relating to past representation elections were presented to the arbitrator whose award the Board declined to defer to; (2) that since the Board's Decision in Case 2-RC-14888, Local 302 has advised Respondent that it can no longer permit interchange between employees in the two different units and that elimination of this interchange will result in Respondent being required to employ 16 additional employees at a substantial cost; (3) that the Board should have deferred to the arbitrator's award in Case 2-RC-14888; and (4) that the special circumstances of this case justify the introduction of evidence in this proceeding. Respondent's contentions seek to relitigate contentions made prior to and rejected in the Board's Decision in Case 2-RC-148882 and in the Board's denial of Respondent's motion for reconsideration of that decision. Inasmuch as Re spondent has already litigated such contentions, it has not raised any issue which is properly triable in this proceeding.' As all material issues have been previously decided by the Board, or admitted by Respondent's answer to the complaint, there are no matters requiring a hearing before a Trial Examiner. Accordingly, the General Counsel's Motion for Summary Judgment is granted. On the basis of the record before it, the Board makes the following: 'Respondent was a party to an active participant in the arbitration hearing . It was aware of what transpired in that proceeding . Therefore, any evidence relating to what occurred in that proceeding does not meet the definition of newly discovered evidence . In addition, we note that Local 302 intervened and actively participated in the hearing in Case 2-RC-14888 and Fox testified during that hearing. 'E-Z Davis Chevrolet , 161 NLRB 1380. Respondent, in its motion to dismiss the Motion for Summary Judgment , or in the alternative to transfer it to the Trial Examiner 's Division , contends that the Board's rules require that all pretrial motions be transfered to the Trial Examiner's Division, and that it is entitled to a hearing before a Trial Examiner and the opportunity to present facts and evidence in support of its position. The Board has the power to entertain and grant motions for summary judgment without first referring the motion to the Trial Examiner's Division . E-Z Davis Chevrolet, supra. Respondent's remaining contentions have been disposed of above . Accordingly, we also deny this motion. FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT 147 Respondent is and has been at all time material herein, a New York corporation engaged in maintaining and operating cafeterias, automat-cafeterias, and waitress service restaurants at various locations in the States of New York and New Jersey. During the past year, which period is representative of its annual operations generally, Respondent, in the course and conduct of its business, derived revenues from the retail sale of food in excess of $500,000, and in the same period it purchased items of food, goods, and materials valued in excess of $50,000, which items it caused to be transported and delivered to its various business locations in interstate commerce directly from States of the United States other than the State to which they were transported and delivered. Respondent admits, and we find, that Respondent 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. II. THE LABOR ORGANIZATION INVOLVED The Restaurant Cashiers Association is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees constitute a unit appropriate for collective- bargaining purposes within the meaning of Section 9(b) of the Act: All unrepresented employees including head cashiers, relief head cashiers, assistant cashiers, relief assistant cashiers, and PM cashiers, employed by Employer in its automat-cafeterias, waitress-service restaurants, and cafeterias, which are located in Manhattan, Queens, Long Island (Garden City), Brooklyn, Westchester County (Cross County Center and White Plains) and New Jersey (Paramus) excluding all represented employees, office employees, retail store employees not employed in automat-cafeterias or service restaurants, employees engaged in industrial feeding, maintenance employees, special officers, watchmen, guards, pensioners, executives and supervisors. 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The certification On January 3, 1969, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Director for Region 2, designated the Union as their representative for the purposes of collective bargaining with Respondent, and on January 13, 1969, the Union was certified as the collective- bargaining representative of the employees in said unit and continues to be such representative. B. The Request To Bargain and Respondent's Refusal Commencing on or about January 6, 1969, and continuing to date the Union has requested and is requesting Respondent to bargain collectively with the Union as the exclusive collective-bargaining representative of the employees in the above-described unit. Since January 14, 1969, and continuing to date, Respondent has refused and continues to refuse to bargain collectively with the Union as exclusive collective-bargaining representative of all employees in said unit. Accordingly, we find that the Union was duly certified by the Board as the collective-bargaining representative of the employees of Respondent in the appropriate unit described above and that the Union at all times since January 13, 1969, has been and now is the exclusive bargaining representative of all the employees in the aforesaid unit, within the meaning of Section 9(a) of the Act. We further find that Respondent has since January 14, 1969, refused to bargain collectively with the Union as the exclusive bargaining representative of its employees in the appropriate unit. By such refusal Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sections 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The acts of Respondent set forth in section III above, occurring in connection with its operations as described in section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce 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 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 appropriate unit and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial year of certification as beginning on the date the Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company Inc., 136 NLRB 785; Commerce 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). Conclusions of Law 1. The Horn & Hardart Company, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Restaurant Cashiers Association is a labor organization within the meaning of Section 2(5) of the Act. 3. The following unit is an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act: All unrepresented employees including head cashiers, relief head cashiers, assistant cashiers, relief assistant cashiers, and PM cashiers employed by Employer in its automat-cafeterias, waitress-service restaurants, and cafeterias, which are located in Manhattan, Queens, Long Island (Garden City), Brooklyn, Westchester County (Cross County Center and White Plains ) and New Jersey (Paramus) excluding all represented employees, office employees, retail store employees not employed in automat-cafeterias or service restaurants, employees engaged in industrial feeding, maintenance employees, special officers, watchmen, guards, pensioners, executives and supervisors. 4. Since January 13, 1969, the Union has been the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. By refusing on or about January 14, 1969, and at all times thereafter, to bargain collectively with the Union as the exclusive bargaining representative of all the employees 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 them in Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. THE HORN & HARDART CO. 149 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 Relations Board hereby orders that Respondent, The Horn & Hardart Company, New York, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning wages, hours, and other terms and conditions of employment, with the Restaurant Cashiers Association as the exclusive bargaining representative of its employees in the following appropriate unit: All unrepresented employees, including head cashiers, relief head cashiers, assistant cashiers, relief assistant cashiers, and PM cashiers, employed by Employer in its automat-cafeterias, waitress-service restaurants, and cafeterias, which are located in Manhattan, Queens, Long Island (Garden City), Brooklyn, Westchester County (Cross County Center and White Plains) and New Jersey (Paramus) excluding all represented employees, office employees, retail store employees not employed in automat-cafeterias or service restaurants, employees engaged in industrial feeding, maintenance employees, special officers, watchmen, guards, pensioners, executives and supervisors. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed to them by 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 understanding in a signed agreement. (b) Post at each of its cafeterias, automat-cafeterias, and waitress service restaurants in Manhattan, Queens, Long Island (Garden City), Brooklyn, Westchester County (Cross County Center and White Plains) and New Jersey (Paramus), copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 2, shall, after being duly signed by Respondent's representative, be 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 Respondent to insure that said Notices are not altered, defaced, or covered by any other material. (c) Notify said Regional Director for Region 2, in writing, within 10 days from the date of this Decision and Order, what steps Respondent has taken to comply herewith. 'In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "the Decision and Order" the words "a Decree of the United States Court of Appeals Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with the Restaurant Cashiers Association 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 our 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 unrepresented employees including head cashiers, relief head cashiers, assistant cashiers, relief assistant cashiers, and PM cashiers, employed by Employer in its automat-cafeterias, waitress-service restaurants, and cafeterias, which are located in Manhattan, Queens, Long Island (Garden City), Brooklyn, Westchester County (Cross County Center and White Plains) and New Jersey, (Paramus) excluding all represented employees, office employees, retail store employees not employed in automat-cafeterias, or service restaurants, employees engaged in industrial feeding, maintenance employees, special officers, watchmen, guards, pensioners, executives and supervisors. THE HORN & HARDART COMPANY (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 36th Floor Federal Building, 26 Federal Plaza, New York, New York 10007, Telephone 212-264-0300.