Friendly Ice Cream Corporation

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Friendly Ice Cream Corporation and Hotel, Restau- rant, Bartenders and Institutional Employees Union, Local 26, AFL-CIO. Case 1-CA-19145 July 16, 1982 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN Upon a charge filed on October 13, 1981, by Hotel, Restaurant, Bartenders and Institutional Em- ployees Union, Local 26, AFL-CIO, herein called the Union, and duly served on Friendly Ice Cream Corporation, herein called Respondent, the Gener- al Counsel of the National Labor Relations Board, by the Regional Director for Region 1, issued a complaint on October 28, 1981, against Respond- ent, 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 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 30, 1981, following a Board election in Case l-RC- 16285, 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 8, 1981, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bar- gaining repesentative, although the Union has re- quested and is requesting it to do so. On November 6, 1981, Respondent filed its answer to the com- plaint admitting in part, and denying in part, the al- legations in the complaint. On January 15, 1982, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on January 21, 1982, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- Official notice is taken of the record in the representation proceed- ing, Case I-RC-16285, and related unfair labor practices Cases I-CA- 16097, 1-CA-16212, and 1-CA-16216, as the term "record" is defined in Sees. 102.68, 102.69(g), 102.45(b), and 102.46 of the Board's Rules and Regulations, Series 8, as amended. See Santee River Wool Combing Com- pany, Inc., 221 NLRB 108 (1975); Local Union Na 3, International Broth- erhood of Electrical Workers AFL-CIO (Mansfield Contracting Corpora. tion), 206 NLRB 423 (1973); LTV Electrosystems, 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); Intertype Co. v. Pen- ello, 269 F.Supp. 573 (D.C.Va. 1967); Follerrt Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. mary Judgment should not be granted. Respondent thereafter filed a response to the Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority 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 complaint2 Respondent admits that it refused the Union's request to bar- gain with it as the exclusive representative of the employees in the certified unit. In defense of such conduct, Respondent essentially contests the valid- ity of the Union's certification. Specifically, Re- spondent argues: (1) that the unit found to be ap- propriate in the underlying representation proceed- ing, Case l-RC-16285, is an inappropriate unit in that the employees do not share a community of in- terest, and (2) that the results of the secret-ballot election conducted on June 27, 1980, did not re- flect the choice of a majority of eligible employees, in that the challenges to a determinative number of ballots were improperly resolved in Case 1-RC- 16285. The General Counsel contends that Re- spondent seeks to relitigate issues which were raised and decided in the prior representation case. We agree with the General Counsel. A review of the record, including that in the representation proceeding in Case l-RC-16285, re- veals that, upon a petition filed by the Union, a representation hearing was held by the Regional Director for Region I at which both parties were afforded the opportunity to present all relevant evi- dence. On May 30, 1980, the Regional Director issued his Decision and Direction of Election in which he found the following unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the National Labor Re- lations Act, as amended: All full time and regular part time waiters, waitresses, cooks, busboys, busgirls, cashiers, and shift supervisors employed by the Em- ployer at its 435 Washington Street, Wey- a In its opposition to the General Counsel's Motion for Summary Judg- ment Respondent makes three arguments for denial of the motion. Each is without merit. Respondent first contends that the General Counsel did not serve on Respondent the exhibits referenced in the motion. We are advised administratively that the General Counsel has since served Re- spondent with the relevant exhibits, thereby mooting this aspect of Re- spondent's opposition. Respondent's second and third arguments in opposition to the motion are that the General Counsel has failed to file with the Board the full record in the underlying prior representation proceeding, and related unfair labor practice proceedings. As indicated in fn. I of this Decision, official notice has been taken of the record in those earlier proceedings. 262 NLRB No. 112 950 FRIENDLY ICE CREAM CORPORATION mouth, Massachusetts location, but excluding all bookkeepers, managers, manager trainees, assistant managers, guards and all supervisors as defined in the Act. On June 19, 1980, the Employer filed with the Board a request for review of the Regional Direc- tor's Decision and Direction of Election,3 contend- ing that the single restaurant unit found to be ap- propriate would be disruptive to the employees and the Employer alike given the frequent interchange of employees among the Employer's many restau- rants. The Board telephonically denied the Em- ployer's request for review on June 27, 1980, and confirmed its denial by telegram dated June 30, 1980. 1 An election was held on June 27, 1980, and re- sulted in a tally of nine votes for and eight votes against the Petitioner, with nine challenged ballots. Thereafter, the Petitioner filed objections to con- duct affecting the results of the election. The Re- gional Director conducted an investigation of the challenges and objections and issued his Supple- mental Decision, which concluded that, since the challenged ballot of one individual, Lisa Dow, and four of the Petitioner's objections involved issues that were then pending before an Administrative Law Judge in Cases l-CA-16097, 1-CA-16212, and 1-CA-16216, the representation proceeding should be consolidated with those cases for hearing before the Administrative Law Judge. However, before the Regional Director issued an order to consolidate, the Administrative Law Judge issued his Decision (JD-114-80).4 On September 3, 1980, the Regional Director issued his Second Supple- mental Decision ordering a hearing on the eight challenges and remaining objections not disposed of by the Administrative Law Judge's Decision. On March 9, 1981, the Board issued its Decision and Order in Cases l-CA-16097, 1-CA-16212, and 1-CA-16216, reported at 254 NLRB 1206, in which it, inter alia, affirmed the Administrative Law Judge's finding that Respondent did not un- lawfully refuse to rehire Lisa Dow. Following a hearing, at which the parties had a full opportunity to present evidence, examine wit- nesses, and file briefs, the Hearing Officer issued his Report on Challenged Ballots and Objections, sustaining the challenges to four ballots, overruling the challenges to four ballots, and recommending that certain of the Petitioner's objections be sus- tained. The Employer filed exceptions to, inter alia, I The Employer also included a motion to stay the election, but later withdrew this aspect of its request for review prior to the election. 4 The Administrative Law Judge found that Respondent had not vio- lated the Act by refusing to rehire Lisa Dow, and had otherwise not committed any unfair labor practices. the overruling and sustaining of the specific chal- lenges and the sustaining of certain objections. The Acting Regional Director, on July 30, 1981, issued a Third Supplemental Decision and Direction of Second Election, adopting all of the Hearing Offi- cer's findings, conclusions, and recommendations. Further. the Acting Regional Director sustained the challenge to the ballot of Lisa Dow and over- ruled those parts of the objections which were based on her situation. The Employer then filed with the Board a request for review of the Acting Regional Director's Third Supplemental Decision and Direction of Second Election. The Board tele- phonically denied the request for review on Sep- tember 14, 1981, and confirmed this denial by tele- gram of September 16, 1981. On September 24, 1981, the Regional Director opened and counied the four ballots whose chal- lenges had been overruled. The revised tally of bal- lots showed that 11 votes had been cast for and 10 against the Union. On September 30, 1981, t!:e Re- gional Director issued his Certification of Repre- sentative certifying the Union as the exclusive col- lective-bargaining representative of the unit of em- ployees found to be appropriate in the Regional Director's Decision and Direction of Election issued on May 30, 1980. In a letter dated October 1, 1981, and again by letter dated October 8, 1981, the Union requested that Respondent bargain with it with respect to rates of pay, wages, hours, and other terms and conditions of employment. By letter dated October 8, 1981, Respondent refused to recognize or bar- gain with the Union. 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- 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.6 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. 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. I See Pirtsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). 951 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a Massachusetts corporation which maintains various establishments within the Commonwealth of Massachusetts where it sells food, ice cream, and related products, including a shop at 435 Washington Street, in the city of Wey- mouth, Massachusetts, which is the facility in- volved in this proceeding. Respondent's annual gross revenues are in excess of $500,000, and its annual purchases of products, goods, and materials which are shipped to it directly through channels of interstate commerce from locations outside the Commonwealth are in excess of $50,000. 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, Restaurant, Bartenders and Institutional Employees Union, Local 26, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. II. 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 waiters, waitresses, cooks, busboys, busgirls, cashiers, and shift supervisors employed by the Em- ployer at its 435 Washington Street, Wey- mouth, Massachusetts location, but excluding all bookkeepers, managers, manager trainees, assistant managers, guards and all supervisors as defined in the Act. 2. The certification On June 27, 1980, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Acting Re- gional Director for Region 1, 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 30, 1981. 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 October 1, 1981, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about October 8, 1981, and continu- ing 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 October 8, 1981, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appro- priate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- tices 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 Friendly Ice Cream Corpora- tion, set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial re- lationship 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 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- 952 FRIENDLY ICE CREAM CORPORATION 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. Friendly Ice Cream Corporation is an employ- er engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Hotel, Restaurant, Bartenders and Institutional Employees Union, Local 26, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full time and part time waiters, waitresses, cooks, busboys, busgirls, cashiers, and shift supervi- sors employed by Respondent at its 435 Washing- ton Street, Weymouth, Massachusetts location, but excluding all bookkeepers, managers, manager trainees, assistant managers, guards and all supervi- sors as defined in the Act, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since September 30, 1981, 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 purposes of col- lective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about October 8, 1981, 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)(1) 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, Friendly Ice Cream Corporation, Weymouth, Mas- sachusetts, its officers, agents, successors, and as- signs, 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, Restaurant, Bartenders and Institutional Employees Union, Local 26, AFL-CIO, as the exclusive bargaining representative of its employees in the following ap- propriate unit: All full time and regular part time waiters, waitresses, cooks, busboys, busgirls, cashiers, and shift supervisors employed by Respondent at its 435 Washington Street, Weymouth, Mas- sachusetts location, but excluding all book- keepers, managers, manager trainees, assistant managers, guards and all 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 its facility at 435 Washington Street, Weymouth, Massachusetts, copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's representative, shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 1, 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 953 DECISIONS OF 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, Restaurant, Bartenders and Institu- tional Employees Union, Local 26, AFL-CIO, as the exclusive representative of the employ- ees 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 waiters, waitresses, cooks, busboys, busgirls, cashiers, and shift supervisors employed by the Em- ployer at its 435 Washington Street, Wey- mouth, Massachusetts location, but exclud- ing all bookkeepers, managers, manager trainees, assistant managers, guards and all supervisors as defined in the Act. FRIENDLY ICE CREAM CORPORATION 954