Yankee Whaler Inn

YANKEE WHALER CO 313 Specialty Restaurants Corporation, d/b/a Yankee Whaler Company, d/b/a Yankee Whaler Inn and Hotel Employees and Restaurant Employ- ees Union Local 11, Hotel & Restaurant Em- ployees and Bartenders International Union, AFL-CIO Case 21-CA-22462 24 September 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER Upon a charge filed by Hotel Employees and Restaurant Employees Union Local 11, Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO, herein called the Union, on 3 August 1983,' the General Counsel of the National Labor Relations Board issued a complaint on 16 September against the Specialty Restaurants Cor- poration, d/b/a Yankee Whaler Company, d/b/a Yankee Whaler Inn, the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the Na- tional Labor Relations Act 2 The complaint alleges that on 4 May, following a Board election in Case 21-RC-17119, the Union was certified as the exclusive collective-bargaining representative of the Respondent's employees in the unit found appropriate (Official notice is taken of the "record" in the representation proceeding as defined in the Board's Rules and Regulations, Secs 102 68 and 102 69(g), amended Sept 9, 1981, 46 Fed Reg 45922 (1981), Frontier Hotel, 265 NLRB 343 (1982) ) The complaint further alleges that since 20 July the Respondent has refused to bar- gain with the Union On 26 September the Compa- ny filed its answer admitting in part and denying in part the allegations in the complaint On 8 November the General Counsel filed a Motion for Summary Judgment On 18 November the Board issued an order transferring the proceed- ing to the Board and a Notice to Show Cause why the motion should not be granted The Company filed a response The General Counsel subsequently filed an answer to the response, "Motion to Amend Complaint," and "Motion to Complete Record" 1 All dates referred to are 1983 unless otherwise noted 2 In its response to the Notice To Show Cause the Respondent notes that par 10 of the complaint alleges a violation of Sec 8(a)(3) of the Act The General Counsel has filed a Motion to Amend the Complaint" The General Counsel states that the reference in par 10 to Sec 8(a)(3) rather than Sec 8(a)(5) is a typographical error The General Counsel directs our attention both to the language of par 10 which is standard pleading for an 8(a)(5) violation and par 13 which specifically alleges a violation of Sec 8(a)(5) The General Counsel also points out that the first amend ed charge alleged a violation of Sec 8(a)(5) and that a copy of It was served on the Respondent Under all the circumstances we grant the General Counsel s Motion to Amend the Complaint The Respondent suffers no prejudice by such action The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel Ruling on Motion for Summary Judgment In its answer to the complaint and its response to the Notice to Show Cause, the Company admits its refusal to bargain with the Union as the exclusive collective-bargaining representative of its employ- ees, but attacks the validity of the certification on the basis of its objections to the election in the rep- resentation proceeding The General Counsel argues that all material issues have been decided previously We agree with the General Counsel The record, including the record in Case 21- RC-17119, reveals that on 20 January the Regional Director for Region 21 issued a Decision and Di- rection of Election On 24 February a secret-ballot election was conducted under the supervision of the Regional Director for Region 21 The correct- ed tally of ballots shows that of approximately 50 eligible voters, 27 cast valid ballots for and 22 against the Union, there were no challenged bal- lots After conducting an investigation of the Com- pany's objections to election conduct, the Regional Director for Region 21 issued his Supplemental Decision recommending that the objections be overruled and a Certification of Representative be issued The Company requested review of the Re- gional Director's Supplemental Decision and Certi- fication of Representative On 1 June the Board denied the Company's request for review The Company contends that the Board's denial of its request for review was improper because the Board did not have before it the full investigative record Specifically, the Company argues that the affidavits of Prado and Ruiz upon which the Re- gional Director relied should have been submitted to and examined by the Board when it considered the request for review Relying on NLRB v Ad- vanced Systems, 681 F 2d 570, 575 (9th Or 1982), the Company maintains that such an argument con- stitutes "extraordinary circumstances" which re- quire the Board to reexamine its decision in the un- derlying representation proceeding We disagree In accordance with our policy of protecting inves- tigatory affidavits from disclosure when the wit- nesses who gave them have not testified at a hear- ing, statements of witnesses are expressly excluded from the record Board's Rules and Regulations, Sec 102 69(g)(1)(n), Frontier Hotel, supra Thus the affidavits were properly excluded from the record and the Board's attendant failure to consider them 272 NLRB No 57 YANKEE WHALER CO 315 ORDER The National Labor Relations Board orders that the Respondent, Specialty Restaurants Corporation, d/b/a Yankee Whaler Company, d/b/a Yankee Whaler Inn, San Pedro, California, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Refusing to bargain with Hotel Employees and Restaurant Employees Union Local 11, Hotel & Restaurant Employees and Bartenders Interna- tional Union, AFL-CIO, as the exclusive bargain- ing representative of the employees in the bargain- ing unit (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces- sary to effectuate the policies of the Act (a) On request, bargain with the Union as the ex- clusive representative of the employees in the fol- lowing appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement All full-time and regular part-time employees employed by Specialty Restaurants Corpora- tion, d/b/a Yankee Whaler Company, d/b/a Yankee Whaler Inn at its restaurant and cock- tail lounge located at Berth 75, San Pedro, California, excluding guards and supervisors as defined in the Act (b) Post at its facility in San Pedro, California, copies of the attached notice marked "Appendix "5 Copies of the notice, on forms provided by the Re- gional Director for Region 21, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply tonal Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation al 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 violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT refuse to bargain with Hotel Em- ployees and Restaurant Employees Union Local 11, Hotel & Restaurant Employees and Bartenders International Union, 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 exer- cise 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 bargaining unit All full-time and regular part-time employees employed by Specialty Restaurants Corpora- tion, d/b/a Yankee Whaler Company d/b/a Yankee Whaler Inn at its restaurant and cock- tail lounge located at Berth 75, San Pedro, California, excluding guards and supervisors as defined in the Act SPECIALTY RESTAURANTS CORPORA- TION, D/B/A YANKEE WHALER COM- PANY, D/B/A YANKEE WHALER INN 5 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