Marriott-In-Flite Services

MARRIO(TT-IN-FLITE-SERVICE Marriott-In-Flite Services, Division Of Marriott Corporation and Teamsters Local Union No. 25, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case -CA-17583 September 30, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBI RS JENKINS AND PENEI.LO Upon a charge filed on June 23, 1980, by Team- sters Local Union No. 25, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, War- ehousemen and Helpers of America, herein called the Union, and duly served on Marriott-In-Flite Services, Division of Marriott Corporation, herein called Respondent, the General Counsel of the Na- tional Labor Relations Board, by the Regional Di- rector for Region 1, issued a complaint on July 3, 1980, 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 and 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 16, 1980, following a Board election in Case 1-RC- 16773,1 the Union was duly certified as the exclu- sive collective-bargaining representative of Re- spondent's employees in the unit found appropriate; and that, commencing on or about June 5, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collec- tively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On July 15, 1980, Re- spondent filed its answer to the complaint admit- ting in part, and denying in part, the allegations in the complaint. On August 18, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on August 22, 1980, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent I Official notice is taken of the record in the representation proceed- ing, Case I-RC 16773, as the term "record" is defined in Secs. 102.68 and 102.6 9(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 F2d 26 (5th Cir 1969); Intertype Co. v Penelh, 269 F.Supp 573 (D CVa 1967). Follett Corp., 164 NlRB 378 (1967., enfd 397 F2d 91 (7th Cir. 1968)1: Sec. 9(d) of the NLRA, as amended 252 NLRB No. 100 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 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 con- tends that the Union's certification was invalid be- cause the unit found to be appropriate did not in- clude employees who operate trucks. Respondent argues that its operations are functionally integrat- ed so that only an overall unit is appropriate. The General Counsel argues that all material issues have been previously decided and there are no liti- gable issues of fact requiring a hearing. We agree with the General Counsel. Our review of the record herein, including the record in Case -RC-16773, discloses that on April 10, 1980, the Acting Regional Director for Region 1 issued a Decision and Direction of Election. On April 16, 1980, Respondent filed a request for review of the Acting Regional Director's Decision, contending that the Acting Regional Director erred in excluding employees who operate trucks from the unit found to be appropriate. The Em- ployer's request for review was denied by the Board on May 1, 1980, and an election was con- ducted on May 7, 1980. The tally showed 48 votes cast for, and 35 against, the Union; with 7 chal- lenged ballots, an insufficient number to affect the results of the election. On May 16, 1980, the Re- gional Director for Region I issued a Certification of Representative. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- leging 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. 2 All issues raised by Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discov- ered 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 2 See Pirrhlrgh Plate Glass Co. v..NL.R.B, 313 U S 146, 162 (1941); Rules anti Regulations of the Hoard. Secs. 102 67(f) and 102 6 9 (c). 707 DECISIONS OF NATIONAL LABOR RELATIONS BOARD practice proceeding. Accordingly, we 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 is a Delaware corporation engaged in the operation of an airline catering business. During the past 12 months, Respondent purchased and received at its East Boston, Massachusetts, fa- cility goods, foodstuffs, and beverages valued in excess of $50,000 directly from points outside the Commonwealth of Massachusetts. We find, on the basis of the foregoing, that Re- spondent 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 INVOILVED Teamsters Local Union No. 25, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. II1. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All transportation department employees of the Employer located at its One Wood Island Drive, East Boston, Massachusetts facility, in- cluding food and equipment handlers, helpers, coordinators and auto mechanics, but exclud- ing all other commissary employees, office clerical employees, guards and supervisors as defined in the Act. 2. The certification On May 7, 1980, 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 1, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bar- gaining representative of the employees in said unit on May 16, 1980, 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 Respondents Refusal Commencing on or about May 29, 1980, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the x- clusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about June 5, 1980, and continuing at all times thereafter to date, Respondent has re- fused, 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 June 5, 1980, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appro- priate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR IABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with its oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing 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 ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 708 MARRIOTT-IN-FLITE SERVICE F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; 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: CONCLUSIONS OF LAW 1. Marriott-In-Flite Services, Division of Mar- riott Corporation, is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters Local Union No. 25, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All transportation department employees of the Employer located at its One Wood Island Drive, East Boston, Masachusetts, facility, includ- ing food and equipment handlers, helpers, coordin- ators and auto mechanics, but excluding all other commissary employees, office clerical employees, guards and supervisors as defined in the Act, con- stitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 4. Since May 16, 1980, 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 June 5, 1980, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged 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 meaning 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 Re- lations Board hereby orders that the Respondent, Marriott-In-Flite Services, Division of Marriott Corporation, East Boston, Massachusetts, its offi- cers, 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 Teamsters Local Union No. 25, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of its employees in the following ap- propriate unit: All transportation department employees of the Employer located at its One Wood Island Drive, East Boston, Massachusetts facility, in- cluding food and equipment handlers, helpers, coordinators and auto mechanics but excluding all other commissary employees, office clerical employes, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise 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 understanding is reached, embody such under- standing in a signed agreement. (b) Post at One Wood Island Park, East Boston, Massachusetts, copies of the attached notice marked "Appendix."3 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's representative, shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous 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 by any other material. (c) Notify the Regional Director for Region , in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. :' In the eent hat this Order is enforced hb a Judgment of a United States Court of Appeals, the bsords in the notice reading "Posted By Order of the National l.abor Relations Board" shall read "Posted Pursu- ant To a Judgment of the United States Court (of Appeals Enforcing an Order of the Natllal Labor Relations Board " 709 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 Teamsters Local Union No. 25, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 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 employ- ees 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 repre- sentative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All transportation department employees of the Employer located at its One Wood Island Drive, East Boston, Massachusetts fa- cility, including food and equipment han- dlers, helpers, coordinators and auto me- chanics but excluding all other commissary employees, office clerical employees, guards and supervisors as defined in the Act. MARRIOTT-IN-FLITE SERVICES, DIVI- SION OF MARRIOTT CORPORATION 710