Lone Star Steakhouse & Saloon

330 NLRB No. 129 NOTICE: This opinion is subject to formal revision before publication in the Board volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Lone Star Steakhouse and Saloon of New Jersey, Inc. and Local 54, Hotel Employees and Restaurant Employees International Union, AFL–CIO. Case 4–CA–28725 March 13, 2000 DECISION AND ORDER BY CHAIRMAN TRUESDALE AND MEMBERS FOX AND BRAME Pursuant to a charge filed on November 1, 1999, the General Counsel of the National Labor Relations Board issued a complaint on November 12, 1999, alleging that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing the Union’s request to bargain following the Union’s certification in Case 4–RC–19665. (Official notice is taken of the “re- cord” in the representation proceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer admitting in part and deny- ing in part the allegations in the complaint. On December 13, 1999, the General Counsel filed a Motion for Summary Judgment. On December 16, 1999, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed a response. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment In its answer the Respondent admits its refusal to bar- gain, but attacks the validity of the certification on the basis of its objections to the election and the Board’s unit determination in the representation proceeding. Specifi- cally, the Respondent reiterates its contentions, raised and rejected in the underlying representation case, that the certified unit consisting of kitchen employees is in- appropriate because only a wall-to-wall unit of all the nonsupervisory employees in the Respondent’s restau- rant is appropriate, and that the Union engaged in alleg- edly improper electioneering in the polling area. All representation issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding. The Respondent does not offer to ad- duce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special cir- cumstances that would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this un- fair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord- ingly, we grant the Motion for Summary Judgment.1 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a New Jersey corporation, has been engaged in the operation of a res- taurant at 3117 Fire Road, Egg Harbor Township, New Jersey. During the 12-month period immediately preced- ing issuance of the complaint, the Respondent, in con- ducting its business operations described above, derived gross revenues in excess of $500,000, and purchased and received at its restaurant goods valued in excess of $5000 directly from points outside the State of New Jersey. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held June 23, 1999, the Union was certified on September 8, 1999, as the exclusive col- lective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time line cooks, prep cooks, cooks, dishwashers, pot washers, sautè cooks, prep persons, and back of the house key employees employed by Respondent at the Restaurant, excluding bartenders, hosts, hostesses, servers, guards, and super- visors as defined in the Act. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain Since about September 29, 1999, the Union has re- quested the Respondent to bargain, and since about Sep- tember 29, 1999, the Respondent has refused. We find that this refusal constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing on and after September 29, 1999, to bar- gain with the Union as the exclusive collective- bargaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor prac- tices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. 1 Member Brame did not participate in that portion of the representa- tion proceeding involving the Board’s unit determination. He agrees, however, that the Respondent has not raised any new matters on that issue that would require the Board to reexamine its decision in the representation proceeding. Accordingly, he joins his colleagues in granting the Motion for Summary Judgment. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union, and, if an understanding is reached, to embody the understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by the law, we shall construe the initial period of the cer- tification as beginning the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, Lone Star Steakhouse and Saloon of New Jersey, Inc., Egg Harbor Township, New Jersey, its offi- cers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Local 54, Hotel Employ- ees and Restaurant Employees International Union, AFL–CIO, as the exclusive bargaining representative of the employees in the bargaining unit. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclu- sive representative of the employees in the following appropriate unit on terms and conditions of employment, and if an understanding is reached, embody the under- standing in a signed agreement: All full-time and regular part-time line cooks, prep cooks, cooks, dishwashers, pot washers, sautè cooks, prep persons, and back of the house key employees employed by Respondent at the Restaurant, excluding bartenders, hosts, hostesses, servers, guards, and super- visors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Egg Harbor Township, New Jersey, copies of the attached notice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Region 4 after being signed by the Respondent’s au- thorized representative, shall be posted by the Respon- dent and maintained for 60 consecutive days in con- 2 If 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” spicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the no- tices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Re- spondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since September 29, 1999. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. Dated, Washington, D.C. March 13, 2000 John C. Truesdale, Chairman Sarah M. Fox, Member J. Robert Brame III, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with Local 54, Hotel Employees and Restaurant Employees International Un- ion, AFL–CIO, as the exclusive representative of the employees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bar- gaining unit: LONE STAR STEAKHOUSE & SALOON OF NEW JERSEY 3 All full-time and regular part-time line cooks, prep cooks, cooks, dishwashers, pot washers, sautè cooks, prep persons, and back of the house key employees employed by us at the Restaurant, excluding bartend- ers, hosts, hostesses, servers, guards, and supervisors as defined in the Act. LONE STAR STEAKHOUSE AND SALOON OF NEW JERSEY, INC.