Dobbs Houses, Inc.

DOBBS HOUSES, INC. Dobbs Houses, Inc. and District 146, International Association of Machinists and Aerospace Workers, AFL-CIO. Case 23-CA-6542 December 8, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Upon a charge filed on May 31, 1977, by District 146, International Association of Machinists and Aerospace Workers, AFL-CIO, herein called the Union, and duly served on Dobbs Houses, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 23, issued a complaint and notice of hearing on June 21, 1977, against Respon- dent, 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 Adminis- trative 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 November 30, 1976, following a Board election in Case 23-RC- 4408, 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 November 30, 1976, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining represen- tative, although the Union has requested and is requesting it to do so. On or about June 29, 1977, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On July 28, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on August 9, 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 t Official notice is taken of the record in the representation proceeding, Case 23-RC-4408, as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electrosystems, Inc., 166 NLRB 938 (1967). enfd. 388 F.2d 683 (C.A. 4, 233 NLRB No. 141 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 disputes the validity of the Union's certification in the underlying representation proceeding on the basis of its election objections and the disposition of certain challenged ballots. Review of the record herein, including that in the representation proceeding, Case 23-RC-4408, shows that an election conducted on October 1, 1976, pursuant to a Decision and Direction of Election, resulted in a vote of 59 for, and 47 against, the Union with 15 challenged ballots which were sufficient in number to affect the election results. Thereafter, Respondent filed timely objections to the election. Petitioner also filed timely objections to the election, but subsequently withdrew them. Respondent's eight objections alleged in substance that the Union: (1) made misrepresentations; (2) made threats; (3) campaigned at proscribed times and areas; (4) made objectionable promises of benefit; (5) injected racial and other irrelevant propaganda into the campaign; and (6) unlawfully used supervisors as union agents during the campaign. After investigation, the Re- gional Director issued on November 30, 1976, his Supplemental Decision and Certification of Repre- sentative in which he overruled the objections in their entirety, sustained the challenges to nine ballots, observed that the six remaining challenged ballots were no longer determinative, and certified the Union. Respondent filed a timely request for review of the Regional Director's Supplemental Decision and Certification of Representative, reiterating 5 of its objections and contending that 13 of the challenged ballots should be opened and counted. On January 26, 1977, the Board granted Respondent's request for review only as to Objections 2 and 3, denied review in all other respects, and remanded the case to the Regional Director for investigation and further appropriate action concerning Objections 2 and 3 which alleged that union agents and others made threats against employees and campaigned at objec- tionable times and in proscribed areas. On February 22, 1977, the Regional Director issued a Second Supplemental Decision in which he overruled Objections 2 and 3 in their entirety, finding 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); Follett Corp.. 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA, as amended. 1021 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that they raised no issues which warranted setting aside the election. Respondent filed a timely request for review of the Regional Director's Second Supplemental Decision contending that the Regional Director improperly investigated Objections 2 and 3. On March 30, 1977, the Board denied Respondent's request for review of the Regional Director's Second Supplemental Deci- sion as it raised no substantial issues warranting review. In its response to the Notice To Show Cause, Respondent contends that it is entitled to a hearing on the issues raised by Objections 2, 3, 6, and 7 and by the challenges to 13 ballots. We find no merit in this contention. By its January 26 and March 30, 1977, responses to Respondent's requests for review of the Regional Director's supplemental decisions, the Board necessarily found that there were no substantial or material issues warranting a hearing. Where, as here, Respondent failed to raise substan- tial or material issues in the representation case below, the Board has held, with judicial approval, that an evidentiary hearing is not required.2 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 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 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. 4 On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a Delaware corporation, maintains facilities in various cities throughout the United States where it is engaged in the production and catering of food and beverages for airlines. During 2 Handy Hardware Wholesale, Inc., 222 NLRB 373 (1976); Janler Plastic Mold Corporation, 191 NLRB 162 (1971); Crest Leather Manufacturing Corporation, 167 NLRB 1085 (1967), and cases cited therein. 3 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). the past 12 months, Respondent purchased and received goods valued in excess of $50,000 at its Houston, Texas, facility directly from firms located at points outside the State of Texas. 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 District 146, International Association of Machin- ists and Aerospace Workers, AFL-CIO, 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 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 employees employed by the Employer at its 4730 Wright Road, Houston, Texas, facility, excluding all office clerical employees, guards and supervisors as defined in the Act. 2. The certification On October 1, 1976, 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 23, designated the Union as their representative for the purpose of collective bargain- ing with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on November 30, 1976, 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 November 30, 1976, and at all times thereafter, the Union has requested Respondent to bargain collectively with it as the 4 Respondent has requested oral argument on the Motion for Summary Judgment. Its request is hereby denied as the record, the Motion for Summary Judgment, and Respondent's response to the Notice To Show Cause adequately present the issues and the positions of the panics. 1022 DOBBS HOUSES, INC. exclusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about November 30, 1976, and continuing at all times thereafter to date, 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 Respondent has, since November 30, 1976, 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 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 I. Dobbs Houses, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. District 146, International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time employees employed by the Employer at its 4730 Wright Road, Houston, Texas, facility, excluding all office clerical employees, guards, and 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. 4. Since November 30, 1976, 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 November 30, 1976, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employ- ees of Respondent in the appropriate unit, Respon- dent 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, Dobbs Houses, Inc., Houston, Texas, 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 District 146, Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: 1023 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All full-time and regular part-time employees employed by the Employer at its 4730 Wright Road, Houston, Texas, facility, excluding all office clerical employees, guards and 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 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 Houston, Texas, facility copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 23, after being duly signed by Respon- dent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous 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 23, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 5 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." 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 District 146, International Association of Machinists and Aerospace Workers, 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 employ- ees employed by the Employer at its 4730 Wright Road, Houston, Texas, facility, excluding office clerical employees, guards and supervisors as defined in the Act. DOBBs HOUSES, INC. 1024