Thomas Lord's Restaurant

THOMAS LORD'S RESTAURANT Victoria Station Incorporated d/b/a Thomas Lord's Restaurant and Hotel and Restaurant Employees and Bartenders Union, Local 2, Hotel and Restau- rant Employees and Bartenders International Union, AFL-CIO Victoria Station Incorporated d/b/a Victoria Station and Hotel and Restaurant Employees and Bartend- ers Union, Local 2, Hotel and Restaurant Employ- ees and Bartenders International Union, AFL- CIO. Cases 20-CA-12790-1 and 20-CA-12790-2 October 18, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY Upon a charge filed on April 21, 1977, by Hotel and Restaurant Employees and Bartenders Union, Local 2, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, herein called the Union, and duly served on Victoria Station Incorporated, herein called the Respondent, doing business as Thomas Lord's Restaurant and Victoria Station, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 20, issued a consolidated complaint on May 13, 1977, against Respondent, alleging that Respon- dent had engaged in and was engaging in unfair labor practices affecting commerce within the mean- ing 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, consolidated 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 complaint alleges in substance that following Board elections in Cases 20-RC-13532 and 20-RC-13535, the Union, on January 4 and 5, 1977, respectively, was duly certified as the exclusive collective-bargain- ing representative of Respondent's employees in the units found appropriate; 1 and that, commencing on or about April 1, 1977, 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 May 27, 1977, Respondent filed its answer to the consolidated complaint admitting in part, and denying in part, the allegations in the said complaint. I Official notice is taken of the record in the representation proceeding, Casues 20-RC-13532 and 20-RC-13535, 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 Electrosysrens, Inc., 166 NLRB 938 (1967), enfd. 388 233 NLRB No. 8 On July 12, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on July 28, 1977, 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 thereafter filed a response to Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority 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 response to the Notice To Show Cause, as well as its affirmative defenses set forth in its answer to the consolidated complaint, Respondent, in substance, attacks the Union's certification on the grounds that single restaurant units are inappropriate and that the Board's finding to that effect is contrary to precedent, arbitrary, capricious, and an abuse of discretion. It also attacks the Union's certification on the basis of its objections to the elections. Respon- dent requests that the Motion for Summary Judg- ment be denied, that the complaint be dismissed and certifications be revoked, or, alternatively, that a hearing be held on its objections. The General Counsel, on the other hand, argues that there are no litigable issues warranting a hearing because all issues concerning the Union's certification in an appropriate unit have been fully litigated and determined in the underlying representation proceed- ings in Cases 20-RC-13532 and 20-RC-13535. We agree with the General Counsel. A review of the record herein, including that in representation Cases 20-RC-13532 and 20-RC- 13535, discloses that, after a hearing, the Regional Director for Region 20 issued, on August 20, 1976, a Decision and Direction of Election in which she found two single-restaurant units to be appropriate for purposes of collective bargaining. The Regional Director also found that the Employer's "kitchen supervisors" were supervisors within the meaning of Section 2(11) of the Act and therefore excluded them from such units. Respondent timely filed a request for review of the Regional Director's Decision, contending that the finding that single-restaurant units are appropriate is contrary to Board precedent, arbitrary and capricious, and that the "kitchen supervisors" are more akin to leadpersons and, F.2d 683 (C.A. 4, 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967); Foletrr Coip., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968): Sec. 9(d) of the NLRA, as amended. 33 DECISIONS OF NATIONAL LABOR RELATIONS BOARD therefore, should be included in the units. On October 6, 1976, the Board denied the request as raising no substantial issues warranting review. Thereafter, elections were conducted on October 8, 1976. In Case 20-RC-13532 the Union prevailed by a vote of 54 to 8, with no challenged ballots. The Union also prevailed in Case 20-RC-13535 by a vote of 13 to 12, with no challenged ballots. Following the elections, Respondent filed timely objections to the elections. In its objections to the election in Case 20- RC-13532 Respondent alleged that the Union violated Savair standards2 by promising to waive initiation fees, that union agents were in the voting area while the polls were open, that employees engaged in electioneering and surveillance of the polling area, and that the Union was a dominated labor organization. In Case 20-RC-13535 Respon- dent objected to the election on the same grounds and further alleged that eligible voters were not permitted to vote, and that the Board agent engaged in certain misconduct which affected the results of the election. After an investigation, during which both parties were afforded the opportunity to present evidence, the Regional Director issued a Supplemen- tal Decision and Certification of Representative on January 4, 1977, in Case 20-RC-13532 and on January 5, 1977, in Case 20-RC-13535 overruling all of the objections in both cases 3 and certifying the Union. On January 24 and 26, 1977, Respondent filed requests for review of the Regional Director's Supplemental Decisions, alleging that the Regional Director made clearly erroneous factual findings departing from precedent, that such findings were prejudicial to the rights of the Employer, and that the Regional Director's actions were arbitrary and capricious. Thus it urged that the elections be set aside and new elections be held. On February 15, 1977, the Board denied Respondent's requests for review on the grounds that they raised no substantial issues warranting review. In the instant proceeding Respondent is attempting once more to raise matters which were fully litigated in the underlying representation cases. This it may not do. It is well settled that in the absence of newly discovered 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. 4 Furthermore, in denying Respondent's request for 2 N.L. RB. v. Savair Manufacturing Co. 414 UI.S. 270 (1973). 3 In both cases the Regional Director found that there was no unlawful waiver of initiation fees under Sasair standards, and that the other objections did not raise substantial or material issues with respect to conduct affecting the election results. review of the Regional Director's Supplemental Decisions, the Board necessarily found that Respon- dent had not raised issues warranting a hearing for its objections and therefore, absent such substantial issues, a hearing is not required. 5 All issues raised by the Respondent in this proceeding 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 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 the 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 THE RESPONDENT Respondent is a California corporation engaged in the restaurant business with facilities located throughout the United States and Canada. During the past 12 months, Respondent has received, in the course and conduct of its business, in excess of $500,000 in gross revenues. During the course and conduct of its business during the past 12 months, Respondent has purchased goods valued in excess of $5,000 directly from suppliers located outside the State of California. We find, on the basis of the foregoing, 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, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Hotel and Restaurant Employees and Bartenders Union, Local 2, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 4 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Seecs. 102.67(f) and 102.69(c). S Williams Energy Company, 218 NLRB 1080, 1081 (1975). See also CSC Oil Company, 220 NLRB 19, 20 (1975), and Allied Meat Company, 220 NLRB 27 (1975). 34 THOMAS LORD'S RESTAURANT III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding I. The unit The following employees of the Respondent constitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act: All dining room and kitchen employees, including bookkeeper, employed by the Employer at its Thomas Lord's facility located at 2000 Union Street, San Francisco, California; excluding guards and supervisors (which includes kitchen supervisors), as defined in the Act. All dining room and kitchen employees, including bookkeeper, employed by the Employer at its Victoria Station facility located at 50 Broadway, San Francisco, California; excluding guards and supervisors (which includes kitchen supervisors), as defined in the Act. 2. The certification On October 8, 1976, a majority of the employees of Respondent in said units, in secret-ballot elections conducted under the supervision of the Regional Director for Region 20, designated the Union as their representative for the purpose of collective bargain- ing with the Respondent. The Union was certified as the exclusive collective- bargaining representative of the employees in the two units described above on January 4 and 5, 1977, respectively, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refiusal Commencing on or about March 23, 1977, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described units. Com- mencing on or about April 1, 1977, 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 representa- tive for collective bargaining of all employees in said units. Accordingly, we find that the Respondent has, since April 1, 1977, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate units, and that, by such refusal, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX5) 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 opera- tions described in section I, above, have a close, intimate, and substantial relationship 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 com- merce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX5) 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 units, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appropriate units will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certification as beginning on the date Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate units. 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 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Victoria Station Incorporated d/b/a Thomas Lord's Restaurant and Victoria Station Incorporated d/b/a Victoria Station is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Hotel and Restaurant Employees and Bartend- ers Union, Local 2, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 35 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The following units constitute appropriate units for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: All dining room and kitchen employees, including bookkeeper, employed by the Employer at its Thomas Lord's facility located at 2000 Union Street, San Francisco, California; excluding guards and supervisors (which includes kitchen supervisors), as defined in the Act. All dining room and kitchen employees, including bookkeeper, employed by the Employer at its Victoria Station facility located at 50 Broadway, San Francisco, California; excluding guards and supervisors (which includes kitchen supervisors), as defined in the Act. 4. Since January 4, 1977, with respect to the Victoria Station facility, and January 5, 1977, as to Thomas Lord's facility the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate units for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about April 1, 1977, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate units, 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, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees 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)(l) of the Act. 7. The aforesaid unfair 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 Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Victoria Station Incorporated d/b/a Thomas Lord's Restaurant and Victoria Station Incorporated d/b/a Victoria Station, San Francisco, California, 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 Hotel and Restau- rant Employees and Bartenders Union, Local 2, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate units: All dining room and kitchen employees, including bookkeeper, employed by the Employer at its Thomas Lord's facility located at 2000 Union Street, San Francisco, California; excluding guards and supervisors (which includes kitchen supervisors), as defined in the Act. All dining room and kitchen employees, including bookkeeper, employed by the Employer at its Victoria Station facility located at 50 Broadway, San Francisco, California; excluding guards and supervisors (which includes kitchen supervisors), 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 units with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. (b) Post at its Thomas Lord's facility, 2000 Union Street, and at its Victoria Station facility, 50 Broadway Street, San Francisco, California, copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able 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 20, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 6 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." 36 THOMAS LORD'S RESTAURANT 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 Hotel and Restaurant Employees and Bartenders Union, Local 2, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, as the exclusive representative of the employees in the bargaining units 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 representa- tive of all employees in the bargaining units 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 agree- ment. The bargaining units are: All dining room and kitchen employees, including bookkeeper, employed by the Employer at its Thomas Lord's facility located at 2000 Union Street, San Francisco, California; excluding guards and supervisors (which includes kitchen supervisors), as defined in the Act. All dining room and kitchen employees, including bookkeeper, employed by the Employer at its Victoria Station facility located at 50 Broadway, San Francisco, California; excluding guards and supervisors (which includes kitchen supervisors), as defined in the Act. VICTORIA STATION INCORPORATED D/B/A THOMAS LORD'S RESTAURANT VICTORIA STATION INCORPORATED D/B/A VICTORIA STATION 37