Cindy's Restaurants, Inc.

CINDY'S RESTAURANTS, INC. Cindy's Restaurants, Inc. and Hotel, Motel, Restau- rant Employees and Bartenders Union, Local # 19. Case 20-CA-12028 April 18, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER Upon a charge filed on October 12, 1976, by Hotel, Motel, Restaurant Employees and Bartenders Union Local # 19, herein called the Union, and duly served on Cindy's Restaurants, Inc., herein called Respon- dent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 20, issued a complaint and notice of hearing on November 9, 1976, 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 7, 1976, following a Board election in Case 20-RC- 13294 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 September 7, 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 November 16, 1976, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On December 17, 1976, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment and a motion to strike portions of Respondent's answer, with a supporting brief. Subsequently, on December 29, 1976, the Board ' Official notice is taken of the record in the representation proceeding, Case 20-RC-13294, 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, 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); Follerr Corp., 164 NLRB 378 (1967). enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA, as amended. 2 In its response to the Notice To Show Cause, Respondent alleged that it had not been provided or served with a copy of the General Counsel's Motion for Summary Judgment and to stnke portions of Respondent's answer. In his opposition to Respondent's motion to return, the General Counsel has attached as Appendixes A and B copies of an affidavit of 229 NLRB No. 16 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 an entry of appearance and response to "Notice To Show Cause and Motion for Return of Case No. 20-RC-13294 and Appurtenant File be Returned to the Regional Director, Region 20, with Instructions." Thereafter, the General Counsel filed an opposition to Respon- dent's motion for return. 2 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 denies the jurisdictional facts as to out-of-state purchases, the Union's status as a labor organization, the appropri- ateness of the unit, and the Union's majority status. Counsel for the General Counsel contends, on the other hand, that these issues were raised or could have been raised in the underlying representation case and may not be relitigated. We agree. Review of the record herein, including that in Case 20-RC-13294, discloses that, after a hearing in the representation case, the Regional Director issued, on July 21, 1976, a Decision and Direction of Election in which she found, inter alia, that (1) during the 12 months preceding the hearing Respondent purchased and received from outside California more than $10,000 worth of supplies; (2) the Union was a labor organization; and (3) a unit limited to Respondent's Morgan Hill Restaurant was appropriate, contrary to Respondent's contention for a broader unit. In the election held on August 27, 1976, the tally of ballots furnished that day showed that nine votes were cast for, and eight against, the Union, with no challenged ballots.3 On September 3, Respondent mailed objec- tions to the election to the Regional Office. On September 7, the Regional Director returned the September 3 letter on the ground that it should have service and of a return receipt card. These appendixes, as well as Respondent's timely responses herein, establish that Respondent was served with the General Counsel's motions and was not prejudiced in its defense against them. 3 The tally of ballots shows that on I. 2, "Void ballots," the word "one" is written in; on I. 7, "Valid votes counted," is the figure "17"; on i. 8, "Challenged ballots," there is a "zero" and the word "one" both lined out; on 1. 9, "Valid votes counted plus challenged ballots," is the figure "18"; on I. 10, "Challenges are not sufficient in number to affect the results of the election," the word "not" is circled; and on I. I I, "A majority of valid votes counted plus challenged ballots (item 9) has not been cast for: Petitioner." the word "not" has been stricken. 41 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been received in the Regional Office no later than September 3, 1976, but in fact was not received until September 7, more than 5 working days after August 27, and therefore was not timely filed.4 Accordingly, the same day, in the absence of any objections filed to the tally of ballots and to the conduct of the election within the time provided therefor, the Regional Director certified the Union as the exclu- sive representative in the unit found appropriate. Respondent failed to file with the Board a request for review of the Regional Director's rejection of its objections as untimely and her subsequent certifica- tion of the Union. It thus appears that Respondent is attempting to raise issues which were, or could have been, timely raised in the underlying representation proceeding and which it did not raise to the Board. This it may not do.5 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.6 All issues raised by 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 7 and deny Respondent's motion for return of Case 20-RC- 13294. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent, a California corporation having a place of business in Morgan Hill, California, is engaged in the operation of seven restaurants at separate locations in northern California. During the past 12 months, Respondents received gross revenues 4 In rejecting Respondent's objections as untimely, the Regional Director inadvertently cited Sec. 102.67 of the Board's Rules and Regulations, rather than Sec. 102.69. 5 In its answer to the complaint Respondent denied the out-of-state purchases of supplies valued in excess of $10,000, the Union's status as a labor organization, the appropriateness of the unit of Morgan Hill employees, and the majority status of the Union. These issues, raised by the denials of the answer and in the response, were resolved in the underlying representation case and were not raised with the Board. In its response, Respondent now raises the issue of (1) the ambiguity of the tally of ballots establishing the Union's majority status, and (2) the timeliness of its in excess of $500,000 and purchased and received supplies valued in excess of $10,000 which were shipped to it from points outside the State of California. 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 Hotel, Motel, Restaurant Employees and Bartend- ers Union, Local # 19, 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 Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All employees employed by the Employer at its location in Morgan Hill, California, including cooks, waitresses, bus girls, bus boys and dish- washers; excluding guards and supervisors as defined in the Act. 2. The certification On August 27, 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 20, 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 September 7, 1976, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. objections rejected by the Regional Director. These two issues were matters that could have been, but were not, raised in the underlying representation case before the Board. In any event, we find that the tally of ballots is sufficiently clear to support the Union's majority status and that the Regional Director properly rejected Respondent's objection as untimely filed. 6 See Pittsburgh Plate Glass Co. v. N.LRB., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). 7 In view of our determination herein, we deem it unnecessary to rule upon the General Counsel's motion to strike portions of Respondent's answer. 42 CINDY'S RESTAURANTS, INC. B. The Request To Bargain and Respondent's Refusal Commencing on or about September 7, 1976, 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 September 7, 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 September 7, 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 1, 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. Cindy's Restaurants, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Hotel, Motel, Restaurant Employees and Bartenders Union, Local # 19, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. All employees employed by the Employer at its location in Morgan Hill, California, including cooks, waitresses, bus girls, bus boys and dishwashers; excluding 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 September 7, 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 September 7, 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(aX5) 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 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 the Respondent, Cindy's Restaurants, Inc., Morgan Hill, California, 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 conditions of employment with Hotel, Motel, Res- taurant Employees and Bartenders Union, Local 43 DECISIONS OF NATIONAL LABOR RELATIONS BOARD # 19, as the exclusive bargaining representative of its employees in the following appropriate unit: All employees employed by the Employer at its location in Morgan Hill, California, including cooks, waitresses, bus girls, bus boys and dish- washers; excluding 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 location in Morgan Hill, California, copies of the attached notice marked "Appendix." 8 Copies of said notice, on forms provided by the Regional Director for Region 20, 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 Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 8 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 Hotel, Motel, Restaurant Employees and Bartenders Union, Local # 19, 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 employees employed by the Employer at its location in Morgan Hill, California, including cooks, waitresses, bus girls, bus boys and dishwashers; excluding guards and supervisors as defined in the Act. CINDY'S RESTAURANTS, INC. 44