Sambo's of Delaware, Inc.

National Labor Relations Board - Board Decisions

Dec 29, 1978

239 N.L.R.B. 1070 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sambo's of Delaware, Inc., and Hotel and Restaurant
Employees and Bartenders International Union, Lo-
cal 267. Case 4-CA-9463
December 29, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
Upon a charge filed on June 19, 1978, by Hotel
and Restaurant Employees and Bartenders Interna-
tional Union, Local 267, herein called the Union,
and duly served on Sambo's of Delaware, Inc.,
herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Regicnal
Director for Region 4, issued a complaint and notice
of hearing on July 28, 1978, and an amendment to
the complaint on August 14, 1978, alleging that Re-
spondent had engaged in and was engaging in unfair
labor practices affecting commerce within the mean-
ing 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, complaint, and notice of hear-
ing before an Administrative Law Judge were duly
served on the parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on May 5, 1978, fol-
lowing a Board election in Case 4-RC-12924, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate: ' and that, commenc-
ing on or about May 10, 1978, and at all times there-
after, Respondent has refused, and continues to date
to refuse, to bargain collectively with the Union as
the exclusive bargaining representative, although the
Union has requested and is requesting it to do so. On
August 7, 1978, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint. Respondent did not file
an answer to the admendment to the complaint.
On October 11, 1978, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on October 25,
1978, the Board issued an order transferring the pro-
ceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Official notice is taken of the record in the representation proceeding,
Case 4 RC-12924, as the term "record" is defined in Secs. 102.68 and
102.69(g) of the NLRB Rules and Regulations and Statements of Proce-
dure, 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 F.2d26(5thCir. 1969); IntertypeCo. v. Penello,
269 F.Supp. 573 (D.C.Va., 1967); Follett Corp., 164 NLRB 378 (1967), enfd.
397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended.
Judgment should not be granted. Respondent there-
after filed a response to the Notice To Show Cause
and a cross-motion for Summary Judgment.
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, its response to the
Notice To Show Cause, and its cross-motion for
Summary Judgment, Respondent repeats its argu-
ment in the representation proceeding that the
Union's certification was invalid because the Union
used a fraudulent document at an organizing meeting
to rally employee support. The General Counsel ar-
gues that all material issues have been previously de-
cided and that there are no litigable issues of fact
requiring a hearing. We agree with the General
Counsel.
Our review of the record herein, including the rec-
ord in Case 4-RC-12924, discloses that pursuant to a
Stipulation for Certification Upon Consent Election
an election was conducted on January 6, 1978. The
tally showed 21 votes cast for and 8 against the
Union, with 4 challenged ballots. Respondent filed
timely objections to the election, alleging the same
conduct as noted above.
On January 31, 1978, the Regional Director for
Region 4 issued a report on objections in which he
recommended that Respondent's objections be over-
ruled in their entirety and that a certification of rep-
resentative issue. Respondent filed exceptions to the
Regional Director's report. On May 5, 1978, the
Board adopted the Regional Director's findings and
recommendations and issued its Decision and Certi-
fication of Representative.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or special
circumstances a respondent in a proceeding alleging
a violation of Section 8(a)(5) is not entitled to reliti-
gate issues which were or could have been litigated in
a prior representation proceeding.2
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding, and Respondent does not offer
to adduce at a hearing any newly discovered or pre-
viously unavailable evidence, nor does it allege that
any special circumstances exist herein which would
require the Board to reexamine the decision made in
2 See Pittsburgh Plate Glass Co., v. N.LR.B., 313 U.S. 146, 162 (1941);
Board's Rules and Regulations, Secs. 102.67(f) and 102.69(c).
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SAMBO'S OF DELAWARE
the representation proceeding. We therefore find that
Respondent has not raised any issue which is proper-
ly litigable in this unfair labor practice proceeding.
Accordingly, we grant the General Counsel's Motion
for Summary Judgment and deny Respondent's
cross-motion for the 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 a restaurant at New Castle, Dela-
ware. During the past 12 months, Respondent had
gross revenues valued in excess of $500,000 and pur-
chased and received goods and merchandise valued
in excess of $50,000 from firms located outside the
State of Delaware.
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 juris-
diction herein.
11. THE LABOR ORGANIZATION INVOLVED
Hotel and Restaurant Employees and Bartenders
International Union, Local 267, is a labor organiza-
tion 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 the Respondent con-
stitute a unit appropriate for collective-bargaining
purposes withis the meaning of Section 9(b) of the
Act:
All full-time and regular part-time employees,
including waiters, waitresses, kitchen help,
cooks, busboys, hostesses, hosts, utility employ-
ees and cashiers; but excluding all supervisors,
guards and professional employees as defined in
the Act.
2. The certification
On January 6, 1978, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional Di-
rector for Region 4, designated the Union as their
representative for the purpose of collective bargain-
ing with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on May 5, 1978, and the Union continues
to be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's Refusal
Commencing on or about May 10, 1978, and at all
times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in in the above-described unit. Commencing
on or about May 10, 1978, and continuing at all
times thereafter to date, Respondent has refused, and
continues to refuse, to recognize and bargain with
the Union as the exclusive representative for collec-
tive bargaining of all employees in said unit.
Accordingly, we find that Respondent has, since
May 10, 1978, and at all times thereafter, refused to
bargain collectively with the Union as the exclusive
representative of the employees in the appropriate
unit and that by such refusal Respondent has en-
gaged 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 PRACTICE UPON
COMMERCE
The activities of Respondent set forth in section
Ill, above, occurring in connection with its opera-
tions described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic,
and commerce among the several States and tend to
lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V ThE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing 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 ap-
propriate unit and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
1071
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate 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 (1964); Bur-
nett 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. Sambo's of Delaware, Inc., New Castle, Dela-
ware, is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Hotel and Restaurant Employees and Bartend-
ers International Union, Local 267, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. All full-time and regular part-time employees,
including waiters, waitresses, kitchen help, cooks,
busboys, hostesses, hosts, utility employees and cash-
iers; but excluding all supervisors, guards and profes-
sional employees 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 5, 1978, 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 May 10, 1978, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit, Respondent has en-
gaged 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, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
in the exercise of the rights guaranteed to them in
Section 7 of the Act and thereby has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing 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,
Sambo's of Delaware, Inc., 198 Dupont Highway,
New Castle, Delaware, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and con-
ditions of employment with Hotel and Restaurant
Employees and Bartenders International Union, Lo-
cal 267, as the exclusive bargaining representative of
its employees in the following appropriate unit:
All full-time and regular part-time employees,
including waiters, waitresses, kitchen help,
cooks, busboys, hostesses, hosts, utility employ-
ees and cashiers; but excluding all supervisors,
guards and professional employees as defined in
the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise 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 under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at 198 Dupont Highway, New Castle,
Delaware, copies of the attached notice marked "Ap-
pendix." 3 Copies of said notice, on forms provided
by the Regional Director for Region 4, 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 Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region 4, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
In the event that this Order is enforced by ajudgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National L.abor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
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SAMBO'S OF DELAWARE
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
and Restaurant Employees and Bartenders In-
ternational Union, Local 267, as the exclusive
representative of the employees in the bargain-
ing unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
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 representa-
tive of all employees in the bargaining unit de-
scribed below with respect to rates of pay, wag-
es, hours, and other terms and conditions of
employment and if an understanding is reached,
embody such understanding in a signed agree-
ment. The bargaining unit is:
All full-time and regular part-time employees.
including waiters, waitresses, kitchen help,
cooks, busboys, hostesses, hosts, utility em-
ployees and cashiers; but excluding all super-
visors, guards and professional employees as
defined in the Act.
SAMBO'S OF DELAWARE. INC.
1073