Black Kettle, Ltd.

BLACK KE1`TLE, LTD. 727 James Fuqua, Donald Baptiste and Black Kettle Corporation, a Limited Partnership d/b/a Black Kettle, Ltd., d/b/a The Drying Shed and Hotel, Motel, Restaurant Employees and Bartenders Union Local 19, Hotel and Restaurant Employ- ees and Bartenders International Union, AFL- CIO. Case 32-CA-3245 June 19, 1981 DECISION AND ORDER Upon a charge filed on December 5, 1980, and amended on December 17, 1980, by Hotel, Motel, Restaurant Employees and Bartenders Union Local 19, Hotel and Restaurant Employees and Bartend- ers International Union, AFL-CIO, herein called the Union, and duly served on James Fuqua, Donald Baptiste and Black Kettle Corporation, a Limited Partnership d/b/a Black Kettle, Ltd., d/b/a The Drying Shed, herein called Respondent, the General Counsel of the National Labor Rela- tions Board, by the Regional Director for Region 32, issued a complaint on January 7, 1981, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices af- fecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Na- tional Labor Relations Act, as amended. Copies of the charge and 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 17, 1980, following a Board election in Case 32- RC-997, the Union was duly certified as the exclu- sive collective-bargaining representative of Re- spondent's employees in the unit found appropri- ate;' and that, commencing on or about October 31, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bar- gain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On January 14, 1981, Respondent filed its answer to the com- plaint admitting in part, and denying in part, the al- legations in the complaint. On March 9, 1981, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on March 13, 1981, the Board issued an order transferring the I Official notice is taken of the record in the representation proceed- ing, Case 32-RC-997, 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 Electrosyserns Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969); Interrype Co. v. Penello. 269 F.Supp. 573 (D.C.Va. 1967); Follerr Corp.. 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended 256 NLRB No. 117 proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent thereafter filed a response to the Notice To Show Cause. 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, Respondent con- tends that the Board's certification is invalid be- cause the decision on the bargaining unit was con- trary to established case law and precedent and the Regional Director's decision on substantial factual issues is clearly erroneous on the record and that such error constituted substantial prejudice to the rights of Respondent; that the Board should have sustained Respondent's objections to conduct af- fecting election, or, the alternative, granted a hear- ing because of the existence of substantial and ma- terial issues of fact; and that the Board has never reviewed the transcript upon which the Regional Director erroneously decided the scope of the bar- gaining unit and the Board has never reviewed the evidence submitted by Respondent to the Regional Director in support of the objections to conduct af- fecting election. In her Motion for Summary Judgment, counsel for the General Counsel maintains that Respond- ent's answer raises no bona fide issue of fact and, in essence, denies only the legal conclusions to be drawn from the factual allegations pleaded in the complaint and admitted in Respondent's answer; that in its affirmative defenses, Respondent con- tends that the Certification of Representative issue in Case 32-RC-997 is defective, and its objections to the election were erroneously overruled without a hearing; that Respondent has previously raised these assertions and they were considered and re- jected by the Board; that Respondent's defenses have been raised at previous stages of the proceed- ing and may not be relitigated in this proceeding; and that Respondent's answer raises no issue of fact requiring a hearing in this proceeding. We agree with the counsel for the General Counsel. Our review of the record herein, including Case 32-RC-997, discloses that pursuant to a Decision and Direction of Election issued by the Regional Director for Region 32 an election was conducted in an appropriate unit of Respondent's restaurant employees located in San Jose, California, on June 16, 1980. Of the total number of votes cast, 15 were for, and 11 were against, the Union, with 1 challenged ballot, a number not sufficient to affect the results of the election. Both Respondent and BLACK KETTLE, LTD 727 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union filed objections to the conduct of the election. 2 On October 1, 1980, Respondent filed a Request for Review of the Regional Director's Supplemen- tal Decision and Certification of Representative. Respondent asserted that the Regional Director im- properly departed from official Board precedent; that the Regional Director's Decision was clearly erroneous on the record resulting in substantial prejudice to the rights of Respondent; and that the summary rejection of Respondent's objections by the Regional Director clearly mandates closer scru- tiny by the Board and, at the very least, the Re- gional Director should have directed a hearing. On or about September 24, 1980, and again on or about October 16, 1980, the Union, by letter, re- quested that negotiations for a collective-bargaining agreement with Respondent commence as soon as possible. By letter dated October 31, 1980, Re- spondent stated in pertinent part, "It is the Compa- ny's position that the Certification of Representa- tive issued by the National Labor Relations Board is invalid because of substantial and material errors made by the Board both in the representation case and the Company's objections to the conduct af- fecting the election results. Accordingly, it is the intention of the Company to have this matter re- viewed by an appropriate United States Court of Appeals." Thereafter, on December 5, 1980, the Union filed the instant unfair labor practice charge, and an amended charge on December 17, 1980. We find no merit to Respondent's contention that a hearing is warranted herein inasmuch as it appears that in seeking a hearing Respondent is merely reiterating the issues previously raised and considered in the underlying representation case, including its request for review. The Board has often held that parties do not have an absolute right to a hearing on objections to an election. And, that a moving party is entitled to an eviden- tiary hearing only upon its presentation of a prima facie showing of "substantial and material" issues.3 It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- 2 The Union withdrew its objections on September 17, 1980. Respond- ent's objections asserted that union agents and supporters threatened em- ployees with retaliation if they did not support the Union; that the head waitress is a supervisor and agent of the Union who threatened and co- erced employees into supporting the Union; and that the head waitress' presence as a union observer during both sessions of the election, over the objection of Respondent, interfered with and restrained employees in the exercise of their rights. After investigating the issues raised by Re- spondent's objections, the Regional Director on September 17, 1980, issued his Supplemental Decision and Certification of Representative, in which Respondent's objections were overruled in their entirety and the Union was certified as the exclusive collective-bargaining representative of the employees in the appropriate unit. 3 Modine Manufacturing Company, 203 NLRB 527 (1973). leging 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 All issues raised by Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discov- ered 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. 5 We therefore find that 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 1. THE BUSINESS OF RESPONDENT Respondent, a California corporation with its ex- ecutive office in Campbell, California, has been en- gaged in the retail sale of food and beverages at its six restaurants located in Northern California. During the past 12 months, Respondent, in the course and conduct of its business operations, de- rived gross revenues in excess of $500,000. During the same representative period, Respondent pur- chased and received goods or services valued in excess of $5,000 which originated outside the State of California. We find, on the basis of the foregoing, that Re- spondent 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, Motel, Restaurant Employees and Bar- tenders Union Local 19, Hotel and Restaurant Em- ployees 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.L.R.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). s Moreover, as previously noted, Respondent's response to the Union's bargaining demand indicated its intention to have the issue of the validity of the Union's certification reviewed by an appropriate United States Court of Appeals. BLACK KETTLE, LTD. 729 III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time employees of the Employer employed at its Toyon Avenue, San Jose, California facility known as "The Drying Shed"; excluding office clerical employees, professional employees, guards and supervisors as defined in the Act. 2. The certification On July 16, 1980, 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 32 designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bar- gaining representative of the employees in said unit on September 17, 1980, and the Union continues to be such exclusive representative within the mean- ing of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about September 24, 1980, and at all times thereafter, the Union has requested 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 31, 1980, and con- tinuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive repre- sentative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since and at all times thereafter, refused to bargain col- lectively with the Union as the exclusive repre- sentative of the employees in the appropriate unit, and that, by such refusal, Respondent 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 oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing 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 ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate 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 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. James Fuqua, Donald Baptiste and Black Kettle Corporation, A Limited Partnership d/b/a Black Kettle, Ltd., d/b/a The Drying Shed is an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. Hotel, Motel, Restaurant Employees and Bar- tenders Union Local 19, Hotel and Restaurant Em- ployees 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 employees of the Employer employed at its Toyon Avenue, San Jose, California facility known as "The Drying Shed"; excluding office clerical employees, profes- sional employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9(b) of the Act. 4. Since September 17, 1980, 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. BLACK KETTLE, LTD. 729 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. By refusing on or about October 31, 1980, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclu- sive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respond- ent 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 thereby has en- gaged 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 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 Re- lations Board hereby orders that the Respondent, James Fuqua, Donald Baptiste and Black Kettle Corporation, A Limited Partnership d/b/a Black Kettle, Ltd., d/b/a The Drying Shed, 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, Motel, Res- taurant Employees and Bartenders Union Local 19, 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 employees of the Employer employed at its Toyon Avenue, San Jose, California facility known as "The Drying Shed"; excluding office clerical employees, professional employees, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise 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 understanding is reached, embody such under- standing in a signed agreement. (b) Post at The Drying Shed Restaurant on Toyon Avenue in San Jose, California, copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 32, after being duly signed by Respondent's representative, shall be posted by Re- spondent 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. Rea- sonable 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 32, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. 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 Pursu- ant 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 Hotel, Motel, Restaurant Employees and Bartenders Union Local 19, Hotel and Restau- rant Employees and Bartenders International Union, AFL-CIO, as the exclusive representa- tive of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees 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 repre- sentative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All full-time and regular part-time employ- ees of the Employer employed at its Toyon Avenue, San Jose, California facility known as "The Drying Shed"; excluding office BLACK KETTLE. LTD. 731 clerical employees, professional employees, guards and supervisors as defined in the Act. JAMES FUQUA, DONALD BAPTISTE AND BLACK KETTLE CORPORATION, A LIMITED PARTNERSHIP D/B/A BLACK KETTLE, LTD., D/B/A THE DRYING SHED