Maine Caterers, Inc. & W. H. Maine, Inc.

MAINE CATERERS. INC. AND W H. MAINE. INC 505 Maine Caterers, Inc. and W. H. Maine, Inc. and Brotherhood of Industrial Caterers. Case 1- CA- 17298 August 25, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MMHBERS JENKINS AND PENEI.IO Upon a charge filed on March 21, 1980, by Brotherhood of Industrial Caterers, herein called the Union, and duly served on Maine Caterers, Inc., and W. H. Maine, Inc., herein called Re- spondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 1, issued a complaint and notice of hearing on April 22, 1980, against Respondent, al- leging that Respondent had engaged in and was en- gaging 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 Rela- tions Act, as amended. Copies of the charge and complaint and notice of hearing before an adminis- trative 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 18, 1979, following a Board election in Case I-RC- 16143, 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 February 18, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bar- gain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On April 25, 1980, Respondent filed its answer to the com- plaint admitting in part, and denying in part, the al- legations in the complaint. On May 20, 1980, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on May 30, 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 Cause. ' Official notice is taken of the record in the representation proceed- ing, Case I-RC-16143, 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 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); Inrterype Co v Penello. 29 F.Supp 573 (D.C Va. 1967). Follelt Corp.. 164 NLRB 378 (1967). enfd 397 F 2d 91 (7th Cir. 1968) Sec 9(d) of the NLRA, as amended 251 NLRB No. 91 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 in its response to the Board's Notice To Show Cause. Respondent set forth the following defenses: W. H. Maine, Inc.. hereinafter referred to as Maine, Inc., is not en- gaged in commerce within the meaning of the Act; Maine, Inc., and Maine Caterers are not joint em- ployers for the purpose of "Jurisdiction" or "Unit" findings and conclusions under the Act; and the drivers of Maine, Inc., are not employees within the meaning of the Act, but rather are independent contractors. 2 The record shows that Respondent in the under- lying representation case (I-RC-16143) raised the same arguments; and that the Regional Director for Region I in his Decision and Direction of Election on April 5, 1979, determined that Maine Caterers and Maine, Inc., constituted a single employer within the meaning of the Act; that W. H. Maine, president of both corporations, testified in great detail concerning the operations of both corpora- tions, was present throughout the hearing while the issue was fully litigated, and had full opportunity to present and cross-examine witnesses; and that the nonsalaried driver salesmen are not accorded that freedom which marks the independent con- tractor, but rather that Respondent has retained the right to control the means and manner by which the customers of Respondent are serviced. The Re- gional Director, therefore, concluded that the non- salaried driver-salesmen are employees within the meaning of the Act, and the unit sought was ap- propriate for collective-bargaining purposes. On April 24, 1979, Respondent filed with the Board a request for review of the Regional Direc- tor's decision; and on May 8, 1979, the Board 2 Respondent, in its objection to the Motion fr Summar) Judgnment. also states that counsel for Maine Caterers has asserlted continuousls that he does not and has not been employed to represent W H Maine, Inc The record shows that counsel initially entered an appearance at the hearing for W. H Maine, Inc. filed an answer to the complaint on behalf of both W H Maine. Inc., and Maine Caterers, entered into unu.CessliI settlement negotiations for both filed a request sith the Board on hllf of both for review of the Regional DiorecIlo'. Decsi in m I)lrectlion f Election; and responded to the Motilon for Summar 5 Judgniil on behah;lt of both Moreover. the record further shksm, t i Ise isuc if hether N H Maine I c, and Maine Caterers constitltted a sirlgle in mploscr 'as fully litigated at the hearinlg and hait Mr Nalrie. tIestified i length lon- cerning this issue, and and at ilo point requesled tillr fr fo her I I e tclllno ny or additional itillesses 50h DECISIONS OF NA IONAI. LABOR RELATIONS BOARD denied Respondent's request on the grounds that it raised no substantial issues warranting review. Review of the record establishes that the Union won the election conducted on May 10, 1979, and was certified as bargaining representative on May 18, 1979, by the Regional Director. The Union requested that Respondent begin col- lective-bargaining by letters dated June 21, 1979, and January 10 and 30, 1980. Respondent by letter dated February 18, 1980, refused, on the grounds that "Maine Caterers does not recognize [the Union] as the certified exclusive bargaining agent for the independent contractors who operate Maine Caterers vehicles." This objection was originally raised in the underlying representation case, in its Request to the Board for Review of the Regional Director's decision, and in its opposition to the Motion for Summary Judgment. 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." 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 I. THE BUSINESS OF RESPONDENT Maine Caterers, Inc., is a Rhode Island corpora- tion engaged in the distribution and sale of food, beverage, and convenience items at its Rhode Island location. W. H. Maine, Inc. (hereinafter called Maine, Inc.), also a Rhode Island corpora- tion, is engaged in the leasing of catering trucks and routes to driver-salesmen who sell and distrib- ute the products of Maine Caterers. The parties stipulated that Maine Caterers is engaged in com- merce in that it has a gross volume in excess of $500,000 per year, and annually receives goods :' Sec Prlthurgh Plat' Glat. Co v. '.L.R.B., 313 r S 146, 162 (1941) Rules and Rcgulalion, of the HBoard, Sec. 102 67(f1 and IO2 6h9(c). valued in excess of $50,000 directly from suppliers outside the State. William H. Maine is the president, treasurer, and secretary of Maine Caterers. His brother, Henry Maine, is the vice president. William H. Maine is also the president, vice president, and secretary- treasurer of Maine, Inc. William H. Maine owns all the stock in both corporations. Neither corporation has a board of directors. The corporations are to- tally dependent upon each other since the products of Maine Caterers are distributed solely by the trucks of Maine, Inc., and the trucks of Maine, Inc., are leased solely to the driver-salesmen. The trucks owned by Maine, Inc., carry the name "Maine Caterers." The Regional Director found, and we agree, that inasmuch as Maine Caterers and Maine, Inc., have common ownership, common control, common management, and integration of operations, they constitute a single employer within the meaning of the Act. As such, jurisdiction over Maine, Inc., is established by the commerce stipula- tions entered into by the parties with respect to Maine Caterers. Film Projects, Inc. d/b/a Capitol Theatre. Capitol Rock, Inc., and Monarch Entertain- ment Bureau, Inc., 231 NLRB 1370, 1374-75 (1977), Marsal Transport, Inc., Salvador Sisneros, d/ b/a International Transportation Co., 199 NLRB 689, 691 (1972). 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 INVOI.VED Brotherhood of Industrial Caterers is a labor or- ganization within the meaning of Section 2(5) of the Act. 111. 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 nonsalaried driver-salesmen employed by Maine Caterers, Inc. and W. H. Maine, Inc., at its Warwick, Rhode Island, location, but ex- cluding all salaried driver-salesmen, all other employees, office clerical employees, profes- sional employees, guards, and supervisors as defined in the Act. MAINE CATERERS, INC. AND W'. H. MAINE INC 507 2. The certification On May 10, 1979, 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 certi- fied as the collective-bargaining representative of the employees in said unit on May 18, 1979, and the Union continues to be such exclusive repre- sentative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about June 21, 1979, 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 February 18, 1980, and con- tinuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive repre- sentative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since February 18, 1980, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respond- ent 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 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 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 I. Maine Caterers, Inc., and W. H. Maine, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Brotherhood of Industrial Caterers is a labor organization within the meaning of Section 2(5) of the Act. 3. All non salaried driver-salesmen employed by Maine Caterers, Inc., and W. H. Maine, Inc., at its Warwick, Rhode Island, location, but excluding all salaried driver-salesmen, all other employees, office clerical employees, professional employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. Since May 18, 1979, 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 February 18, 1980, and at all times thereafter, to bargain collectively with the above-named labor organization as the ex- clusive bargaining representative of all the employ- ees of Respondent in the appropriate unit, Re- spondent has engaged in and is engaging in unfair labor practices 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)(l) 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. 5... I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, Maine Caterers, Inc., and W. H. Maine, Inc., War- wick, Rhode Island, 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 Brotherhood of In- dustrial Caterers as the exclusive bargaining repre- sentative of its employees in the following appro- priate unit: All nonsalaried driver-salesmen employed by Maine Caterers, Inc., and W. H. Maine, Inc., at its Warwick, Rhode Island, location, but ex- cluding all salaried driver-salesmen, all other employees, office clerical employees, profes- sional employees, 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 125 Kilvert Street, Warwick, Rhode Island, copies of the attached notice marked "Ap- pendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's representative, shall 4 In the es'ent that this Order is enforced by a Judgment of a United States Curt of Appeals. the words in the notice reading "Posted by )rder of the National Labor Relations Board" shall read "Posted Pursu- anlt to a Judgment f the United States Court of Appeals Enforcing an Order of the National Relations Board." 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 1, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 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 Brotherhood of Industrial Caterers 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 nonsalaried driver-salesmen employed at our Warwick, Rhode Island, location, but excluding all salaried driver-salesmen, all other employees, office clerical employees, professional employees, guards and supervi- sors as defined in the Act. MAINE CATERERS, INC. AND W. H. MAINE, INC.