Bill Knapp's Michigan, Inc.

BILL KNAPP'S NORTH FLINT, INC. 907 Bill Knapp's North Flint, Inc., a Wholly-Owned Subsidiary of Bill Knapp's Michigan, Inc. and Local 794, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO. Case 7-CA- 10646 May 28, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Upon a charge and amended charge filed on October 2, 1973, and October 11, 1973, respectively, by Local 794, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, herein called the Union, and duly served on Bill Knapp's North Flint, Inc., a Wholly-Owned Subsidiary of Bill Knapp's Michigan, Inc., herein called the Respon- dent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a complaint on November 13, 1973, 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 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 on September 19, 1973, following a Board election in Case 7-RC-11803 the Union was duly certified as the exclusive collective-bargaining representative of Res- pondent's employees in the unit found appropriate;1 and that, commencing on or about October 11, 1973, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collective- ly with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On November 21, 1973, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On November 30, 1973, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, alleging there to be no material disputes with respect to any relevant material facts which could necessitate a hearing or an Administra- tive Law Judge's Decision. Subsequently, on Decem- ber 6, 1973, 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. Respon- dent thereafter filed a response to Notice To Show Cause. Subsequently, the Union filed a Memoran- dum of Law and the Respondent filed a response thereto. 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 answer to the complaint and response to the Notice To Show Cause, Respondent contends that the Union was not properly selected and certified as exclusive collective-bargaining representative in Case 7-RC-11803, because, as alleged in its objections, the Union's misrepresentations and offer to waive dues and initiation fees invalidated the election. Respon- dent also contends that it is entitled to a hearing on its objections in order to litigate issues raised thereby. Our review of the record herein, including the record in Case 7-RC-11803, reveals an election, conducted pursuant to a Stipulation for Certification Upon Consent Election on July 13, 1973, resulted in a 20 to 19 vote in favor of the Union. Respondent filed timely objections to conduct affecting the results of the election, alleging in substance that the Union had misrepresented material facts regarding statements made about it by an employee who allegedly had been associated with the Union at a different employer, and that it was impossible for Respondent to reply to and correct this misrepresen- tation. Respondent also contends that, prior to the election, the Union offered to waive initiation fees to those employees signing with the Union before a contract was signed with the Employer. The Region- al Director investigated the objections and, on August 3, 1973, issued a Report and Recommenda- tion on Objections, in which he recommended overruling the objections and certifying the Union. Thereafter, Respondent filed exceptions with the Board, reasserting its objections. The Board, after due consideration, issued a Decision and Certifica- tion of Representative on September 19, 1973, adopting the findings, conclusions, and recommen- dations of the Regional Director and certifying the Union. We find no merit in Respondent's contention that i Official notice is taken of the record in the representation proceeding, Golden Age Beverage Co, 167 NLRB 151, enfd 415 F 2d 26 (C A 5, 1969), Case 7-RC-11803, as the term "record" is defined in Secs 102 68 and Intertype Co v Penello, 269 F Supp 573 (D C Va., 1967), Follett Corp, 164 102.69(f) of the Board's Rules and Regulations, Series 8, as amended See NLRB 378, enfd 397 F 2d 91 (C A 7, 1968), Sec 9(d) of the NLRA. LTV Electrosystems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C A 4, 1968), 210 NLRB No. 106 908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a hearing is required on its objections. The objections were considered and rejected on the merits by the Regional Director, and the Board necessarily found there were no substantial or material issues raised thereby in approving the Regional Director's report and certifying the Union. Absent a prima facie showing of substantial and material issues which would warrant setting aside the election,2 a hearing is not required to satisfy the mandates of due process. No such showing has been made herein. It thus appears that Respondent is attempting to relitigate issues determined adversely to it in the underlying representation case. 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.3 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.4 With respect to the waiver of dues and initiation fees, Respondent now urges that the Supreme Court decision in N. L. R. B. v. Savair Manufacturing Co., 414 U.S. 270 (1973), requires that the General Counsel's Motion for Summary Judgment be denied. We do not agree. Respondent, in support of this contention, adverts to a letter sent to employees by the Union, which provides, in p*rtinent part: The dues you would be paying would not be paid until you have a wage increase negotiated and ratified by you the members and only then after you receive the increase, would you be asked to pay the dues. The dues would not be in excess of $5.50 per month or the initiation fee not more than $15.00 for all new employees hired in after the contract is drawn up and signed. employees joining the Union prior to the election, but rather it was equally available beyond the election until after a contract was entered with Respondent, with limited dues and initiation fees for new employees hired after the contract. An uncondi- tional waiver such as this is permissible under the Savair (supra) decision of the Supreme Court. See Irwindale Division, Lau Industries, A Division of Phillips Industries, Inc., 210 NLRB No. 42. Accordingly, the General Counsel's Motion for Summary Judgment is granted. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, Bill Knapp's North Flint, Inc., a Wholly-Owned Subsidiary of Bill Knapp's Michigan, Inc., is a corporation duly organized and existing by virtue of the Laws of the State of Michigan, with an office and place of business located at G-4418 West Pierson Road, Flint, Michigan, and engaged in the restaurant business for the preparation and sale of food to the public. During the fiscal year ending February 28, 1973, which period is representative of its operations, Respondent in the course and conduct of its business operations had a gross revenue in excess of $500,000 derived at its restaurants from the preparation and sale of food to the public, and in the course and conduct of its business operations, purchased and caused to be transported and deliv- ered to its Michigan restaurant facilities goods and materials, including food and food supplies, valued in excess of $100,000, of which goods and materials valued in excess of $50,000 were transported and delivered to its restaurants throughout Michigan, directly from points located outside the State of Michigan. 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 It appears from this letter that the waiver of initiation fees was not limited solely to those current 2 Danville Industries, Inc, 210 NLRB No. 43 3 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) 4 Respondent, in its answer to the complaint , denies service of the amended charge upon it. However, attached to the Motion for Summary Judgment is a copy of a letter of October 11, 1973, enclosing a copy of the Local 794, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, is a amended charge and a signed receipt for registered mail to Respondent. Respondent, in its response to the Notice To Show Cause, neither offers any evidence to controvert the letter and receipt, nor otherwise contests their validity We therefore find, on this uncontroverted evidence, that the denial is stricken as sham and the allegation of service of the amended charge herein is deemed in he true and so found BILL KNAPP'S NORTH FLINT, INC. labor organization within the meaning of Section 2(5) of the Act. III. UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. 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 full-time and regular part-time waitresses, waiters, hostesses, cashiers, cooks, bus boys, food handlers and dishwashers employed by the Employer at its G-4418 West Pierson Road, Flint, Michigan, location; but excluding office clerical employees, guards, and all supervisors as defined in the Act. 2. The certification On July 13, 1973, 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 7 designated the Union as their representative for the purpose of collective bargain- ing with the Respondent. The Union was certified as the collective-bargaining representative of the em- ployees in said unit on September 19, 1973, 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 Refusal Commencing on or about October 3, 1973, 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 unit. Com- mencing on or about October 11, 1973, and continu- ing 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 unit. Accordingly, we find that the Respondent has, since October 11, 1973, 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, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE 909 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(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 period of certifica- tion as beginning on the date Respondent commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate unit. 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. Bill Knapp's North Flint, Inc., a Wholly- Owned Subsidiary of Bill Knapp's Michigan, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 794, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time waitresses, waiters, hostesses, cashiers, cooks, bus boys, food handlers and dishwashers employed by the Employer at its G-4418 West Pierson Road, Flint, Michigan, location; but excluding office clerical employees, guards, and all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Since September 19, 1973, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about October 11, 1973, 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 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, 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)(1) 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. 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 G-4418 West Pierson Road, Flint, Michigan, location copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 7 after being duly signed by Respondent's represent- ative, shall 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 the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. s 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 " ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Bill Knapp's North Flint, Inc., a Wholly-Owned Subsidi- ary of Bill Knapp's Michigan, Inc., Flint, Michigan, 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 Local 794, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time waitresses, waiters, hostesses, cashiers, cooks, bus boys, food handlers and dishwashers employed by the Employer at its G-4418 West Pierson Road, Flint, Michigan, location; but excluding office clerical employees, guards, and all 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 unit with 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 Local 794, Hotel and Restaurant Employees and Bar- tenders International Union, AFL-CIO, 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 representa- tive 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 agree- ment. The bargaining unit is: All full-time and regular part-time wait- resses, waiters, hostesses, cashiers, cooks, bus boys, food handlers and dishwashers employed by the Employer at its G-4418 West Pierson Road, Flint, Michigan, loca- BILL KNAPP'S NORTH FLINT, INC. 911 tion ; but excluding office clerical employees, guards, and all supervisors as defined in the Act. BILL KNAPP'S NORTH FLINT, INC., A WHOLLY- OWNED SUBSIDIARY OF BILL KNAPP'S MICHIGAN, INC. (Employer) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 313-226-3200. Dated By (Representative) (Title)