Tio Pepe, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tio Pepe, Inc. and Bartenders, Hotel, Restaurant and Cafeteria Employees Union, Local 36, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO. Case 5-CA-10452 May 30, 1979 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND TRUESDALE Upon a charge filed on January 15, 1979, by Bar- tenders, Hotel, Restaurant and Cafeteria Employees Union, Local 36, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, herein called the Union, and duly served on Tio Pepe, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 5, issued a complaint on January 26, 1979, against Respondent, alleging that Respondent had engaged in and was engaging in un- fair 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 com- plaint alleges in substance that on October 26,' 1978, following a Board election in Case 5-RC-10373, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;2 and that, commencing on or about January 5, 1979, Respondent has refused, and continues to refuse, to meet and bargain in good faith with the Union, and at all times thereafter, Re- spondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclu- sive bargaining representative, although the Union has requested and is requesting it to do so. On Febru- ary 5, 1979, Respondent filed its answer to the com- plaint admitting in part, and denying in part, the alle- gations in the complaint. On February 16, 1979, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on March 8, 1979, the Board issued an order transferring the pro- ceeding to the Board and a Notice To Show Cause I The complaint erroneously alleges the date of the certification to be Oc- tober 25, 1978. 2 Official notice is taken of the record in the representation proceeding, Case 5-RC-10373, 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 (4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969); Intertype 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. why the General Counsel's Motion for Summary Judgment should not be granted. Respondent there- after 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 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 complaint, Respondent admits its refusal to bargain, but attacks the appropriateness of the unit and the certification on the basis that the Board erred in certifying the Union as the exclusive bargaining representative of Respondent's employees. In his Motion for Summary Judgment, counsel for the General Counsel alleges that Respondent seeks to relitigate issues previously considered in the underly- ing representation case and that there are no factual issues warranting a hearing. In its response and oppo- sition to the Motion for Summary Judgment and No- tice To Show Cause, counsel for Respondent con- tends that newly discovered evidence, previously unavailable, vitiates the factual principles relied on by the Board in the representation matter in conclud- ing, inter alia, that the captains are nonsupervisory employees and that the preelection conduct attrib- uted to them did not warrant the setting aside of the election. Our review of the record herein, including the rec- ord in Case 5-RC-10373. reveals that on February 23, 1978, the Union filed the petition alluded to above. Thereafter, the Regional Director for Region 5 conducted a hearing on March 17, 1978. In the Deci- sion and Direction of Election issued on March 29, 1978, the Regional Director, inter alia, found, con- trary to the position of Respondent, that captains were not supervisors within the meaning of the Act. On April 11, 1978, Respondent filed with the Board a request for review of the aforesaid Decision and Di- rection of Election citing the unit placement of cap- tains and bookkeepers as its principal grounds there- for. On April 24, 1978, the Board granted request for review only with respect to the unit placement of cap- tains. The Regional Director, pursuant to the provi- sions of Section 102.67(b) and (c)(3) of the Board's Rules and Regulations, conducted the election as pre- viously scheduled except that the ballots of the cap- tains were challenged and all of the other ballots were impounded pending the Board's determination on the request for review. On May 5, 1978, Respondent filed timely objections to conduct affecting the results of 242 NLRB No. 98 636 TIO PEPE, INC. the election.3 On August 15, 1978, the Board issued its Decision on Review, 237 NLRB 537 (1978), affirming the Regional Director's Decision and Direction of Election. On August 21, 1978, Respondent filed a mo- tion for reconsideration of the Board's Decision on Review. On August 22, 1978, the Board issued an order amending its original Decision on Review and directing that the impounded ballots be opened and counted. On September 25, 1978, the Board issued an order denying Respondent's motion for reconsider- ation. On September 29, 1978, the impounded ballots were opened and counted. The tally of ballots re- vealed that of 54 eligible voters, 31 voted for the Union, 20 voted against the Union, and that I vote was challenged. On October 10, 1978, Respondent moved to trans- fer the proceedings to the Board. By an order dated October 24, 1978. the Board de- nied the motion to transfer the proceedings. On October 26, 1978, the Regional Director for Re- gion 5 issued a Supplemental Decision and Certifica- tion of Representative.4 On November 9, 1978, Respondent filed a timely request fbr review which was denied by the Board on December 14, 1978. By letter dated December 28, 1978, the Union re- quested that Respondent meet with it to begin collec- tive bargaining for the unit of employees involved herein. Respondent, by letter dated January 5, 1979, ad- vised the Union that it would not recognize the certi- fication of representative referred to above, and would not meet with the Union for collective bargain- ing. In his response and opposition to the Motion for Summary Judgment and Notice To Show Cause, counsel for Respondent indicated that newly discov- ered evidence fortifies Respondent's contention with respect to the unit placement of captains and the ef- fect of their preelection conduct on the outcome thereof. The new evidence proffered consisted of an affidavit from Respondent's co-owner. Jesus Perez, dated March 19. 1979. and unsworn statements from two waiters and one busboy. Perez avers in substance that shortly before March 3, 1979, he learned of dis- satisfaction among the waiters because the captains had -rneged on their promise to increase their split of tips after the Union won the election. Perez stated that he called the employees together on Saturday. ) The objections. inter alia, alleged that the captains both threatened em- ployees and promised to increase their split of gratuities if the Union won the election. 'The appropriate unit is: All kitchen and dining room employees em- ployed by the Employer at its Baltimore. Mar land, location, excluding all office clerical employees, guards, and supervisors as defined in the Act. March 3, 1979, and that in this meeting the captains agreed to change the tip split for the waiters and bus- boys. In their unsworn statements dated March 3, 1979,5 the two waiters and the busboy allege merely that during the period before the election the captains promised to increase the split of the tips in favor of the waiters and busboys. In its Decision on Review in the representation proceeding the Board found no merit in Respondent's contention that the captains are supervisors within the meaning of the Act. In reaching this conclusion the Board pointed out that the evidence established that: tips appeared to be controlled by tradition, that there was no evidence that the captains had been told they had authority to change the distribution of tips, and that they (the captains) had not exercised any authority over the splitting of tips. Apart from any question of timeliness of Respon- dent's submission of this evidence we are not per- suaded that the new evidence adds any meaningful indicia of the supervisory status to the captains. It is clear that Perez simply called the dining room em- ployees together on March 3, 1979, and thereby or- chestrated whatever change that was made in the tips. Consequently the criterion alluded to in the afore- mentioned Decision on Review has not been met. We come now to the unsworn claims of the two waiters and one busboy that some of the captains promised them a larger split of the tips if the Union won. It is quite possible for one employee to "prom- ise" another added benefits if the Union wins. The ability to make the promise in no way demonstrates that the employee has the power to carry it out. In- deed here, on the employees' own evidence, the tips were not changed until Respondent took action. It is clear that the new evidence does not contribute materially to that previously considered in the repre- sentation proceeding and therefore offers no reason for reopening the record therein. Accordingly, the motion to reopen the record in the representation matter is hereby denied. 6 It is well settled that in the absence of newly dis- covered 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.' I The untyped parts of the statements are written in Spanish. The) appear to have been signed by two waiters and one busboy. I Although the motion to reopen carries the number of the representation case it was submitted together with the response to the Motion To Show Cause. Therefore the Board feels it is properly considered in this proceeding as part of our determination of the merits of the Motion for Summary Judg- ment. 'See Pitsburgh Plate Glass Co. . N L R.B., 313 U.S. 146. 162 (1941); Rules and Regulations of the Board, Secs 102.67 (f) and 102.6 9(c) 637 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All issues raised by Respondent in this proceeding were or could have been litigated in the prior repre- sentation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or previ- ously unavailable evidence, other than as discussed above, nor does it allege that any special circum- stances exist herein which would require the Board to reexamine the decision made in the representation proceeding. We therefore find Respondent has not raised any issue which is properly litigable in this un- fair 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 FA(CT I. THE BUSINESS (IF RESPONDENT Respondent, a Maryland corporation, is engaged in the operation of a restaurant at its Baltimore, Mary- land, location. During the preceding 12 months, a representative period, Respondent had gross revenues in excess of $500,000. During the same period, Re- spondent purchased and received, in interstate com- merce, products valued in excess of $50,000 from points located outside the State of Maryland. We find, on the basis of the foregoing, that Respon- dent 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. 11. THE LABOR ORGANIZATION INVOLVED Bartenders, Hotel, Restaurant and Cafeteria Em- ployees Union, Local 36, 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. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding I. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All kitchen and dining room employees em- ployed by the Employer at its Baltimore, Mary- land, location, excluding all office clerical em- ployees, guards and supervisors as defined in the Act. 2. The certification On April 29, 1978, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Di- rector for Region 5, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the col- lective-bargaining representative of the employees in said unit on October 26, 1978, and the Union contin- ues 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 December 28, 1978, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about January 5, 1979, and continuing at all times thereafter to date, Respondent has refused, and con- tinues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since January 5, 1979, 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, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECTI OF TIHE UNFAIR LABOR PRACTICES UPON (OMMERCE The activities of Respondent set forth in section III. above, occurring in connection with its operations described in section , above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce 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 mean- ing of Section 8(a)(5) and (I) 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 ap- propriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. 638 TIO PEPE, INC. In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commences to bargain in good faith with the Union as the recog- nized bargaining representative in the appropriate unit. See Mar-Jac Poultr' Company, Inc., 136 NLRB 785 (1962); Commerce Company d/h/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964): 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: CONC(IUSIONS OF LAW 1. Tio Pepe, Inc., is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Bartenders, Hotel, Restaurant and Cafeteria Employees Union, Local 36, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All kitchen and dining room employees em- ployed by the Employer at its Baltimore, Maryland, location, excluding all office clerical employees, guards. and supervisors as defined in the Act, consti- tute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since October 26, 1978, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about January 5, 1979, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Re- spondent in the appropriate unit, Respondent has en- gaged 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, Respondent has interfered with, restrained, and coerced, and is intertering with, restraining, and coercing. employees in the exercise of the rights guaranteed them in Sec- tion 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)( I1) 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 Rela- tions Board hereby orders that the Respondent, Tio Pepe, Inc., its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and con- ditions of employment with Bartenders, Hotel, Res- taurant and Cafeteria Employees and Bartenders In- ternational Union, AFL-CIO. as the exclusive bargaining representative of its employees in the fol- lowing appropriate unit: All kitchen and dining room employees em- ployed by the Employer at its Baltimore. Mary- land, location, excluding all office clerical em- ployees, 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 understand- ing is reached. embody such understanding in a signed agreement. (b) Post at its Baltimore, Maryland. restaurant copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Re- gional Director for Region 5, 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 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 bh any other material. (c) Notify the Regional Director for Region 5, in writing, within 20 days from the date of this Order. what steps have been taken to comply herewith. I In the event Ihai this Order is enforced bh a judgment of a United States Court of Appeals. the vords n the notice reading "Posted h order of the National La)or Relations Board'" shall read "Piosted Pursuant to a Judgment of he United States Court Iof Appeals Enforcing an Order of the National l.ahor Relations Board" 639 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 Bar- tenders, Hotel, Restaurant and Cafeteria Em- ployees Union, Local 36, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described be- low. 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 de- scribed 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 agreement. The bargaining unit is: All kitchen and dining room employees em- ployed by the Employer at its Baltimore, Maryland, location, excluding all office cleri- cal employees, guards and supervisors as de- fined in the Act. Tlo PEPE, INC. 640