Samurai/Kabuki Japanese Steak House

DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Samurai, Inc., d/b/a The Samurai/Kabuki Japanese Steak House and Hotel, Motel, Restau- rant Employees and Bartenders Local 12, Hotel and Restaurant Employees and Bartenders Inter- national Union, AFLCIO. Case 9-CA-10656 May 2, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER Upon a charge filed on September 22, 1976, by Hotel, Motel, Restaurant Employees and Bartenders Local 12, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, herein called the Union, and duly served on The Samurai, Inc., d/b/a The Samurai/Kabuki Japanese Steak House, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 9, issued a complaint and notice of hearing on November 8, 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 May 19, 1976, following a Board election in Case 9-RC-10905, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate; 1 and that, commenc- ing on or about September 21, 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 representative, although the Union has requested and is requesting it to do so. On November 12, 1976, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. Respondent admitted that it has refused upon request to bargain collectively with the Union since September 21, 1976. Respondent denied the conclusory 8(a)(l) and (5) allegations and asserted that the Union was improp- erly certified and that, furthermore, Respondent is not a successor and is not bound by the certification On January 4, 1977, counsel for the General Counsel filed directly with the Board a Motion for t Official notice is taken of the record in the representation proceeding, Case 9-RC-10905, 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 Electrosyslems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4, 229 NLRB No. 62 Summary Judgment. Subsequently, on January 18, 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. Respon- dent 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 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 its response to Notice To Show Cause, Respondent denies that it is a successor and therefore asserts that it has no obligation to bargain with the Union. Respondent also attacks the Union's certification, arguing that preelection conduct rendered it improper. Review of the record reveals that, pursuant to a Decision and Direction of Election in Case 9-RC- 10905, an election was held on May 2, 1975, and was won by the Union. Respondent's predecessor, Eura- sian Enterprises, Inc., filed objections on May 7, 1975, and the Hearing Officer's Report and Recom- mendations issued October 21, 1975, a Second Supplemental Decision, Order and Notice of Further Hearing was issued by the Regional Director on November 18, 1975, and a Third Supplemental Decision, Order and Notice of Further Hearing was issued by the Regional Director on January 22, 1976. The Hearing Officer's Supplemental Report and Recommendations issued on March 31, 1976, while the Fourth Supplemental Decision and Certification of Representative was issued by the Regional Director on May 19, 1976. Respondent's request for review of the Fourth Supplemental Decision was denied on July 20, 1976. Following a request by the Union on or about August 16, 1976, that Respondent bargain collective- ly in good faith with respect to rates of pay, wages, hours of employment, and other terms and condi- tions of employment, Respondent refused to recog- nize and bargain with the Union as the exclusive collective-bargaining representative of its employees in the certified unit. Respondent has refused to bargain with the Union since September 21, 1976. In response to a Motion for Summary Judgment, an adverse party may not rest upon denials in its pleadings, but must present specific facts which 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); Foilett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA, as amended. 404 THE SAMURAI, INC. demonstrate that there are material facts in issue which require a hearing. 2 Respondent in the instant case presented no material facts not admitted or previously determined. 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 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.4 We there- fore 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. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a Pennsylvania corporation, is en- gaged in the retail restaurant business at its Cincin- nati, Ohio, location, the only location involved herein. During the past 12 months, which is a representative period, Respondent had a gross volume of sales in excess of $500,000. During that same period, Respondent had a direct inflow of goods, in interstate commerce, valued in excess of $25,000 which it purchased and caused to be shipped from points located outside the State of Ohio directly to its Cincinnati, Ohio, location. 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 Barten- ders Local 12, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, is a 2 Western Electric Company, Hawthorne Works, 198 NLRB 623 (1972). 3 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Seecs. 102.67(1) and 102.69(c). 4 Respondent's contention that there exists newly discovered evidence is 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 regular full-time and regular part-time barten- ders, waiters, waitresses, bus help, cashiers, cooks (chefs), kitchen helpers, pantry employees, dish- washers and maitre d's employed by Respondent at its restaurant and bar located at 126 East Sixth Street, Cincinnati, Ohio, excluding all office clerical employees, casual employees, the hat and coat check employee, and all professional em- ployees, guards and the general manager, assis- tant managers, the bar and cocktail lounge manager (head bartender), the head chef and all other supervisors as defined in the Act. 2. The certification On May 2, 1975, 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 9, 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 May 19, 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 August 16, 1976, and at all times thereafter, the Union has requested Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about September 21, 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 representative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since September 21, 1976, and at all times thereafter, refused to bargain collectively with the Union as the without merit. All the evidence referred to in Respondent's opposition to the General Counsel's Motion for Summary Judgment had been raised in the request for review and was duly considered by the Board. 405 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 1. The Samurai, Inc., d/b/a The Samu- rai/Kabuki Japanese Steak House, 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 Local 12, Hotel and Restaurant Employ- ees and Bartenders International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All regular full-time and regular part-time bartenders, waiters, waitresses, bus help, cashiers, cooks (chefs), kitchen helpers, pantry employees, dishwashers and maitre d's employed by Respondent at its restaurant and bar located at 126 East Sixth Street, Cincinnati, Ohio, excluding all office clerical employees, casual employees, the hat and coat check employee, and all professional employees, guards and the general manager, assistant managers, the bar and cocktail lounge manager (head bartender), the head chef and all other 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 May 19, 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 21, 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)(1) 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, The Samurai, Inc., d/b/a The Samurai/Kabuki Japanese Steak House, Cincinnati, Ohio, 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 Local 12, Hotel and Restaurant Employees and Bartenders Interna- tional Union, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All regular full-time and regular part-time barten- ders, waiters, waitresses, bus help, cashiers, cooks 406 THE SAMURAI, INC. (chefs), kitchen helpers, pantry employees, dish- washers and maitre d's employed by Respondent at its restaurant and bar located at 126 East Sixth Street, Cincinnati, Ohio, excluding all office clerical employees, casual employees, the hat and coat check employee, and all professional em- ployees, guards and the general manager, assis- tant managers, the bar and cocktail lounge manager (head bartender), the head chef and all other 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 126 East Sixth Street, Cincinnati, Ohio, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 9, 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 9, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. ' 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 Local 12, Hotel and Restaurant Employees and Bartenders International Union, 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 regular full-time and regular part-time bartenders, waiters, waitresses, bus help, cashiers, cooks (chefs), kitchen helpers, pantry employees, dishwashers and maitre d's employed by Respondent at its restau- rant and bar located at 126 East Sixth Street, Cincinnati, Ohio, excluding all office clerical employees, casual employees, the hat and coat check employee, and all professional employees, guards and the general manager, assistant managers, the bar and cocktail lounge manager (head bartender), the head chef and all other supervisors as defined in the Act. THE SAMURAI, INC., D/B/A THE SAMURAI/KABUKI JAPANESE STEAK HOUSE 407