ARA Services, Inc.

ARA SERVICES, INC ARA Services, Inc. and Local 1111, United Food and Commercial Workers International Union, AFL-CIO. Case 22-CA-9914 August 12, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDAI.E Upon a charge filed on April 17, 1980, by Local 1111, United Food and Commercial Workers Inter- national Union, AFL-CIO, herein called the Union, and duly served on ARA Services, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 22, issued a complaint and notice of hearing on May 16, 1980, against Re- spondent, 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 April 3, 1980, following a Board election in Case 22-RC- 8053, the Union was duly certified as the exclusive collective-bargaining representative of Respond- ent's employees in the unit found appropriate;' and that, commencing on or about April, 11, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining repre- sentative, although the Union has requested and is requesting it to do so. On May 27, 1980, Respond- ent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On June 10, 1980, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on June 13, 1980, the Board issued an order transferring the proceed- ing 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 a response to Notice To Show I Official notice is taken of the record in the representation proceed- ing, Case 22--RC-8053, 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 Elecirosysrems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd 415 F.2d 26 (5th Cir 1969); Intertype Co. PenciL,. 269 F Supp 573 (D.C Va 1967): Follerr Corp., 164 NLRB 378 (1967), enfd 397 F2d 91 (7th Cir. 1968); Sec 9(d) of the NLRA, as amended 251 NLRB No. 13 Cause, and the Union filed a statement in support of the General Counsel's motion. 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 and its response to the Notice To Show Cause, Respondent contends that the Union's certification was invalid because the Board failed to grant a hearing with respect to allegations of union coercion and Board agent mis- conduct raised in its objections to the election. Re- spondent also contends that where Board agent misconduct is alleged, it is a denial of due process for the Regional Office in which the Board agent is employed to investigate the conduct. It further argues that the Board summarily rejected its excep- tions to the Regional Director's Report on Objec- tions and its motion for reconsideration and, ac- cordingly, renews its exceptions and motion for re- consideration. The General Counsel contends that all material issues have been previously decided and there are no litigable issues of fact requiring a hearing. We agree with the General Counsel. Our review of the record herein, including the record in Case 22-RC-8053, discloses that pursuant to a Stipulation for Certification Upon Consent Election an election was conducted on January 11, 1980. The tally showed 30 votes cast for and 28 against the Union, with no challenged ballots. Re- spondent filed timely objections, alleging that the Union threatened employees and that the Board agent conducted the election so as to create the im- pression that the Union controlled the voting pro- cedure. On February 21, 1980, the Regional Direc- tor for Region 22 issued a report recommending that the objections be overruled and that a Certifi- cation of Representative issue. Respondent filed ex- ceptions to the Regional Director's Report on Ob- jections. On April 8, 1980, the Board adopted the Regional Director's findings and recommendations and issued a Certification of Representative. Re- spondent filed a motion for reconsideration on April 17, 1980. The Board denied Respondent's motion on May 1, 1980. 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 55 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 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 1. THE BUSINESS OF RESPONDENT Respondent is a Delaware corporation engaged in the business of providing food and refreshment services at its Murray Hill, New Jersey, facility. During the past 12 months, Respondent derived gross revenues exceeding $500,000 and purchased and received goods and materials valued in excess of $50,000 directly from suppliers located outside the State of New Jersey. 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. II1. THE LABOR ORGANIZATION INVOLVED Local 1111, United Food and Commercial Workers International Union, AFL-CIO, 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 consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time food service employees employed by the Employer at its 600 Mountain Avenue, Murrary Hill, New Jersey location, including general service See Pimshurgh Plate Glass Co. NLR.B .313 !.S. 146, 16h2 (1941): Rules and Regulations of the Board, Secs. 102 7(f) and 102.69(c) employees, utility employees, waitresses, cash- iers, store room clerks, bakers' assistants, grill cooks and chefs, but excluding the secretary and all other office clerical employees, profes- sional employees, managerial employees, guards, the hostess, the baker, the assistant managers and all other supervisors as defined in the Act. 2. The certification On January 11, 1980, a majority of the employ- ees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Director for Region 22, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bargaining repre- sentative of the employees in said unit on April 3, 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 Respondent's Refusal Commencing on or about April 8, 1980, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about April 11, 1980, and continu- ing 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 April 11, 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, by such refusal, Respondent 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 II, 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. ARA SERVICES. INC. 57 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 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, mak zs the following: CONCLUSIONS OF LAW 1. ARA Services, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 1111, United Food and Commercial Workers International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time food serv- ice employees employed by the Employer at its 600 Mountain Avenue, Murray Hill, New ersey, location, including general service employees, util- ity employees, waitresses, cashiers, store room clerks, bakers' assistants, grill cooks and chefs, but excluding the secretary and all other office clerical employees, professional employees, managerial em- ployees, guards, the hostess, the baker, the assistant managers and all other supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9(b) of the Act. 4. Since April 3, 1980, the above-named labor or- ganization has been and now is the certified and ex- clusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about April 11, 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, ARA Services, Inc., Murray Hill, New Jersey, 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 Local 1111, United Food and Commercial Workers International Union, AFL-CIO, as the exclusive bargaining rep- resentative of its employees in the following appro- priate unit: All full-time and regular part-time food service employees employed by the Employer at its 600 Mountain Avenue, Murray Hill, New Jersey location, including general service employees, utility employees, waitresses, cash- iers, store room clerks, bakers' assistants, grill cooks and chefs, but excluding the secretary and all other office clerical employees, profes- sional employees, managerial employees. guards, the hostess, the baker, the assistant managers and all other 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 ARA SERVICES. INC. 57 58 DECISIONS OF NATIONAL an understanding is reached, embody such under- standing in a signed agreement. (b) Post at 600 Mountain Avenue, Murray Hill, New Jersey, copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms pro- vided by the Regional Director for Region 22, after being duly signed by Respondent's representa- tive, 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. :' In the eent that this Order is enforced by a Judgmenlt of a United State, Court of Appeals, the words in the notice reading Posted by Order lf the National l.abor Relation BHoard" shall read Posted Pursu- anl to a Judgment of the United States Court of Appeals Fnforcing an Order of the National Labor Relations Board" I 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 Local 1111, United Food and Commer- cial Workers International Union, AFL-CIO, as the exclusive representative of the employ- ees in the bargaining unit described below. WE WIL. 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 WIILL, 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 full-time and regular part-time food service employees employed by the Em- ployer at its 600 Mountain Avenue, Murray Hill, New Jersey location, including general service employees, utility employees, wait- resses, cashiers, store room clerks, bakers' assistants, grill cooks and chefs, but exclud- ing the secretary and all other office clerical employees, professional employees, manage- rial employees, guards, the hostess, the baker, the assistant managers and all other supervisors as defined in the Act. ARA SERVICES, INC.