Perko's Enterprises, Inc.

522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Perko's Enterprises, Inc. and Hotel & Restaurant Employees & Bartenders Union Local No. 49, AFL-CIO. Case 20-CA-15328 August 26, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE Upon a charge filed on May 5, 1980, by Hotel & Restaurant Employees & Bartenders Union Local No. 49, AFL-CIO, herein called the Union, and duly served on Perko's Enterprises, Inc., herein called Respondent, the General Counsel of the Na- tional Labor Relations Board, by the Regional Di- rector for Region 20, issued a complaint and notice of hearing on May 15, 1980, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce 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 ad- ministrative 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 January 25, 1980, following a Board election in Case 20-RC- 14940, the Union was duly certified as the exclu- sive collective-bargaining representative of Re- spondent's employees in the unit found appropri- ate;' and that, commencing on or about April 15, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bar- gaining representative, although the Union has re- quested and is requesting it to do so. Thereafter, Respondent filed its answer to the complaint admit- ting in part, and denying in part, the allegations in the complaint. On July 7, 1980, counsel for the General Counsel filed directly with the Board a Motion for Sum- mary Judgment, with exhibits attached. Subse- quently, on July 10, 1980, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Coun- sel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a document entitled "Memorandum in opposition of Motion for Official notice is taken of the record in the representation proceed- ing. Case 20-RC 14940, as the term "record" is defined in Secs 102.h68 and 102 69(g) of the Board's Rules and Regulations Series 8, as amended. See LT Electrosystems. 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 v. Penello, 269 F.Supp. 573 (DC.Va 1967); Follet Corp. 164 NLRB 378 (1967), enfd. 397 F 2d 91 (7th Cir 1968); Sec. 9(d) lof the NLRA, as amended 251 NLRB No. 65 Summary Judgment" as its 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 Respondent, in its answer to the complaint, admits the factual allegations that it has refused and failed to recognize and bargain, upon request, with the Union. In its answer and its response to the Notice To Show Cause, however, Respondent at- tacks the Union's certification, reiterating its con- tentions in the underlying representation proceed- ing that the Board lacks jurisdiction over its oper- ations, that the Regional Director improperly re- fused to grant it an extension of time to file a brief before issuing her Decision and Direction of Elec- tion, and that it was entitled to a hearing on its ob- jections to the election. Review of the record herein, including the repre- sentation proceeding in Case 20-RC-14940, reveals that on November 2, 1979, the Union filed a repre- sentation petition under Section 9 of the National Relations Act. On December 7, 1979, the Regional Director issued her Decision and Direction of Election in which she found, inter alia, that in a Supplemental Decision and Direction of Election in Case 20-RC-13492, dated April 20, 1977, she as- serted jurisdiction over Respondent based on a stip- ulation that it had annual gross revenues in excess of $500,000 and purchased goods valued in excess of $5,000, which originated outside the State of California. She further found that Respondent's op- erations had expanded since April 20, 1977, and that no evidence was offered to show the changed circumstances in its operations or error warranting a finding that the statutory jurisdictional standards had not been satisfied. Accordingly, the Regional Director asserted jurisdiction over Respondent. On or about December 7, 1979, Respondent filed a request for a review of the Regional Director's Decision and Direction of Election, which was denied by the Board on January 8, 1980, as it raised no substantial issues warranting review. The election was held on January 4, 1980. At the con- clusion of the balloting, the tally revealed that 12 votes had been cast for, and 7 votes against, the Union. There were two challenged ballots, an in- sufficient number to affect the results. On January 9, 1980, Respondent filed timely objections to con- duct affecting the results of the election. After in- vestigation, the Regional Director, on January 25, --- P'ERKO)'S ENTERPRISES, INC. 523 1980, issued her Supplemental Decision and Certifi- cation of Representative, in which she overruled Respondent's objections in their entirety, and certi- fied the Union as the exclusive bargaining repre- sentative of the employees in the appropriate unit. On February 4, 1980, Respondent filed a request for review of the Regional Director's Supplemental Decision, which was denied by the Board on March 10, 1980, as it raised no substantial issue warranting review. 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 practice proceeding. 3 In this proceeding, Respondent contends that due process entitles it to a hearing on its objections to the election. Prior to denying Respondent's re- quest for review, the Board considered the Region- al Director's supplemental decision and the matters raised in the request for review, including Re- spondent's contention that a hearing on its objec- tions was warranted. By denying Respondent's request for review, the Board necessarily found that the objection raised See Pittsburgh Plate Glass Co. N.L. R B. 313 U S 146, 162 (1'9411: Rules and Regulations of the Doard, Secs 102 67(f) and 1 02.6 9(c) . We find Respondent's denials in its ansser to the complaint raise no issues of fact warranting a hearing In its answer. Respondent denies. inter alia, the allegation in par. I that the mailing of a copy of the charge to its Auburn facility consitituted proper service, asserting that the Board knows mail sent there is often not received by its administrative person- nel. In its answer to par. 2. it denies that it ever maintained an office at Auburn but not that it has a place of business at that location. In any event, notwithstanding Respondent's denials, it is clear that it actually re- ceived a copy of the charge, as evidenced by a copy of a signed return receipt submitted by the General Counsel, the alahdit of which Re- spondent does not dispute. Respondent also, generally, denies par 2(c) of the complaint, which al- leges that during the fiscal year ending in 1979 Respondent, in the course and conduct of its business, derived gross revenues iII excess of S5()(X)(X) and purchased and received gds and materials valued in excess iof $5,000 directly from suppliers located outside the State of California As pointed out by lhe General Counsel, and as noted above, however, the Regional Director, in asserting jurisdiction in her Decision and Direction of Election. fiound that Respondent had gross revenues in excess of $500,000 and purchased goods valued in excess of $5,00) which origital- ed outside the State of California. Suhsequently, the Board denied Re- spondeni's request for reviews in hicl its raised the issue of luridiction. and Respoindenl t does ilt noss offer to adduce any ness reidence no substantial or material issues warranting a hear- ing. 4 Further, it is well established that the parties do not have an absolute right to a hearing on ob- jections to an election. It is only when the moving party presents a prima facie showing of substantial and material issues which would warrant setting aside the election that it is entitled to an eviden- tiary hearing. It is clear that, absent arbitrary action, this qualified right to a hearing satisfies the constitutional requirements of due procees. 5 Ac- cordingly, we grant the Motion for Summary Judgment. 6 On the basis of the entire record, the Board makes the following: FINDINGS OF FAC T I. THE BUSINESS OF RESPONDE NT Respondent, a California corporation, operates 10 family-style coffee shops in various locations in the State of California, including the one involved in this proceeding located at Auburn, California. During the fiscal year ending in 1979, a representa- tive period, Respondent in the course and conduct of its business operations derived gross revenues in excess of $500,000 and purchased goods valued in excess of $5,000 which originated outside the State of California. 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. It. THE LABOR ORGANIZATION INVOI.VED Hotel & Restaurant Employees & Bartenders Union Local No. 49, AFL-CIO, is a labor organi- zation within the meaning of Section 2(5) of the Act. 4 See Madwonvill (Concrete Co.. a Division of Corum Edwards, Inc.. 220 NlRB 668 (1975): Evansville .4uto Paris. Inc.. 217 NLRB 660 (1 975) s GTE Lenkurt. Incorporated. 218 NLRB 929 (1975) Heaven lly [ilr Ski Area. a C'a/ijrnia Corporation, and Heavenly Valley, a Partnership. 215 NlRB 734 (1974) 4,ia/lgamaied Clothing WorAcrs of .4merica ['infie/d Manufacturing (Company. Inc] NL R. 424 F 2d 81S, 828 (D C Cir 1970) Allhough in its answer to the complaint Respotndelt refers to ils suit agaiist the Hoard in he United States District Court for the Eastern Dis- Irict f California concerning the salidit of I he certification of the Union. c take ofifcial noltice of the fai.l that tlhe action s is dtsnissed on Ma. 1, 198g PrAs ,Entrpriss Inc N IR. RB. N I 7q I Cl (1 [)Cal 198I)) E R K O. . . .NE P I E S N 2 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 employees employed by the Employer at its Auburn, California, location, including waitresses, host- esses, cooks and dishwashers-bus persons, ex- cluding office clerical employees, R.O.P. stu- dent workers, the manager and assistant man- ager, guards and supervisors as defined in the Act. 2. The certification On January 4, 1980, a majority of the employees of Respondent in said unit, in a secret-ballot elec- tion conducted under the supervision of the Re- gional Director for Region 20, 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 January 25, 1980, and the Union continues to be such exclu- sive 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 9, 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 15, 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 15, 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 (I) 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 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. HIE 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, makes the following: CONCLUSIONS OF LAW 1. Perko's Enterprises, Inc., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Hotel & Restaurant Employees & Bartenders Union Local No. 49, AFL-CIO, is a labor organi- zation within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time employees employed by the Employer at its Auburn, Califor- nia, location, including waitresses, hostesses, cooks and dishwashers-bus persons, excluding office cleri- cal employees, R.O.P. student workers, the man- ager and assistant manager, guards and 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. ------ - - PERKO'S ENTERPRISES, INC. 525 4. Since January 25, 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 April 15, 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, Perko's Enterprises, Inc., Auburn, California, its of- ficers, 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 & Restaurant Employees & Bartenders Union Local No. 49, AFL-CIO, as the exclusive bargaining representa- tive of its employees in the following appropriate unit: All full-time and regular part-time employees employed by the Employer at its Auburn, California, location, including waitresses, host- esses, cooks and dishwashers-bus persons, ex- cluding office clerical employees, R.O.P. stu- dent workers, the manager and assistant man- ager, 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 its Auburn, California, facility copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 20, 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 Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. I 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 Pursu- ant 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 & Restaurant Employees & Bar- tenders Union Local No. 49, 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 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 full-time and regular part-time employ- ees employed by the Employer at its PERKOS ENTERPRISES, INC 525 526 DI)ECISIONS ()F NATIONAI. LABOR RELAI()ONS O()ARD Auburn, California, location, including wait- resses, hostesses, cooks and dishwashers-bus persons, excluding office clerical employees, R.O.P. student workers, the manager and as- sistant manager, guards and supervisors as defined in the Act. PERKO'S ENTERPRISES, INC.