Tanforan Park Food Purveyor's Council

National Labor Relations Board - Board Decisions

Dec 27, 1978

239 N.L.R.B. 1061 (N.L.R.B. 1978)

TANFORAN PARK FOOD PURVEYOR'S COUNCIL
Tanforan Park Food Purveyor's Council and The Hap
Smith Company and San Mateo Bartenders and
Culirnary Workers Union, Local 340, AFL-CIO.
Case 20-CA- 13954
December 27, 1978
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY. AND TRUESDALE
Upon a charge filed on July 17, 1978, by San Ma-
teo Bartenders and Culinary Workers Union, Local
340, AFL-CIO, herein called the Union, and duly
served on Tanforan Park Food Purveyor's Council
and The Hap Smith Company, a nonprofit Califor-
nia corporation, herein called Respondents, the Cen-
eral Counsel of the National Labor Relations Board,
by the Regional Director for Region 20, issued a
complaint and notice of hearing on July 28, 1978,
against Respondents, alleging that Respondents had
engaged in and were engaging in unfair labor prac-
tices affecting commerce within the meaning of Sec-
tion 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 hearing be-
fore 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 March 29, 1978,
following a Board election in Case 20-RC- 14351., the
Union was duly certified as the exclusive collective-
bargaining representative of Respondents' employees
in the unit found appropriate;' and that, commenc-
ing on or about June 21, 1978, and at all times there-
after, Respondents have refused, and continue to
date to refuse, to bargain collectively with the Union
as the exclusive bargaining representative of
Respondents' employees, although the Union has re-
quested and is requesting them to do so. On August 8
and 9, 1978, Respondents filed their answers to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On September 11, 1978, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment and a memorandum in support
thereof. Subsequently, on September 19, 1978, the
Board issued an order transferring the proceeding to
Official notice is taken of the record in the representation proceeding,
Case 20-RC 14351. 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 Electrosysiems, 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 (D.C.Va.. 1967),
Follert Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec
9(d) of the NLRA, as amended.
the Board and a Notice To Show Cause why the
General Counsel's Motion for Summary Judgment
should not be granted. Respondents thereafter filed
separate responses 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 their answers to the complaint and in their re-
sponses to the Notice To Show Cause, Respondents
concede that they have refused to bargain with the
Union, but deny that they thereby violated Section
8(a)(5) and (1) of the Act. Respondent Council
claims that it is not an employer of the employees
involved, while Respondent Hap Smith takes the po-
sition, inter alia, that the representation election was
improperly directed. Both Respondents maintain
that objections to the election were improperly over-
ruled and, in substance, that the Union's certification
is invalid and should be revoked. Respondent Hap
Smith further argues that the Board is not foreclosed
from reconsidering issues litigated and decided in the
underlying representation proceeding.
Counsel for the General Counsel argues that
Respondents' contentions are without merit as they
raise issues which were presented to, and decided by,
the Board in the underlying representation case.
A review of the record herein, including the record
in Case 20-RC-14351, shows the following: On Au-
gust 2, 1977, the Union filed a petition on which a
hearing was held on September 2, 1977. On Novem-
ber 18, 1977, the Regional Director issued a Decision
and Direction of Election in which the appropriate
unit for collective bargaining was found to consist
of:
All buspersons, supply persons, janitors and
dishwashers employed by the Employers in the
common area of the International Restaurant at
their Tanforan Park Shopping Center, San Bru-
no, California, location, excluding office clerical
employees, guards and supervisors as defined in
the Act.
On December 14 and 15, 1977, respectively, Respon-
dent Hap Smith and Respondent Council each filed
with the Board a request for review of the Regional
Director's Decision and Direction of Election con-
testing the Regional Director's finding that Respon-
dents were joint employers. These requests were de-
nied on January 12, 1978.
1061
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On January 14, 1978, an election by secret ballot
was conducted under the direction and supervision
of the Regional Director among the employees in the
unit described above. A majority of the unit employ-
ees designated and selected the Union as their repre-
sentative for the purposes of bargaining collectively
with Respondents. On January 19 and 20, 1978, Re-
spondents Council and Hap Smith separately filed
objections to the election which were overruled in
their entirety in the Regional Director's Supplemen-
tal Decision and Certification of Representative is-
sued March 29, 1978, certifying the Union as the ex-
clusive collective-bargaining representative of
Respondents' employees in the appropriate unit.
Respondents' separate requests for review of the
aforementioned Supplemental Decision and Certifi-
cation of Representative were denied by the Board
on June 5, 1978.
By letters dated May 1, 1978, and June 13, 1978,
the Union requested that Respondents meet with it
for the purpose of negotiating a collective-bargaining
agreement governing the terms and conditions of em-
ployment of the employees in the unit set forth in the
Decision and Direction of Election. On June 21,
1978, Respondent Council, by letter, in effect refused
to recognize and to meet and bargain collectively
with the Union, and both Respondents have failed
and refused at all times relevant to recognize and
bargain with the Union.
Respondents seek to justify their refusal to recog-
nize and bargain with the Union on the grounds that,
contrary to the conclusions reached by the Regional
Director, they are not joint employers of the employ-
ees in the unit found appropriate and that their sepa-
rate objections to the representation election were
improperly overruled. They thus claim that the
Union's certification is invalid and that they are
therefore under no legal obligation to bargain with
the Union.
The issues which Respondents seek to raise at this
time were, as they in effect concede, raised to and
decided by the Regional Director in her decision and
supplemental decision in the underlying representa-
tion proceeding. In denying Respondents' separate
requests for review of the Regional Director's deci-
sion and supplemental decision, the Board affirmed
the Regional Director's findings and conclusions
with respect to those matters that Respondents now
seek to raise. It thus appears that Respondents are
attempting to raise again issues which were specifi-
cally considered by the Regional Director and the
Board in the underlying representation case.
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 Respondents in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondents do not
offer to adduce at a hearing any newly discovered or
previously unavailable evidence, nor do they allege
that any special circumstances exist herein which
would require the Board to reexamine the decision
made in the representation proceeding.3 We therefore
find that Respondents have not raised any issue
which is properly litigable in this unfair labor prac-
tice 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 RESPONDENTS
Respondent Council, a California nonprofit corpo-
ration with its principal office located in San Bruno,
California, is engaged in the management of the In-
ternational Restaurant common area in the Tanforan
Park Shopping Center in San Bruno, California. Re-
spondent Council is composed of employers who
own the nine fast-food stands in the aforementioned
common area. During the most recent calendar year,
the fast-food stands which comprise Respondent
Council collectively received gross revenues in excess
of $500,000, and, during the same period, they collec-
tively purchased and received goods valued in excess
of $5,000 directly from outside the state of Califor-
nia. During the most recent calendar year, Respon-
dent Council received revenues in excess of $50,000
from the above-mentioned fast-food stands.
Respondent Hap Smith, a California corporation,
is engaged in the management of shopping center
complexes in the State of California, including the
Tanforan park Shopping Center in San Bruno, Cali-
fornia. During the most recent calendar year, the
Tanforan Park Shopping Center received gross rental
revenues in excess of $100,000, $25,000 of which were
received from Walgreen's and Petrie's Department
Stores, each of which is a retail business which annu-
ally receives gross revenues in excess of $500,000 and
purchases and receives in California goods valued in
2See Pittsbourgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
Thus, though the Board, as Respondent Hap Smith argues, bhas the pow-
er to relitigate any unfair labor practice proceeding matters previously liti-
gated and decided in an underlying representation proceeding, we, never-
theless, for reasons indicated above, find no merit in its contention that we
should permit such relitigation in this proceeding.
1062
TANFORAN PARK FOOD PURVEYOR'S COUNCIL
excess of $5,000 directly from outside the State of
California. Further, Respondent Hap Smith, at all
times material, has been and continues to be, in con-
junction with Respondent Council, a joint employer
of the employees employed in the common area of
the International Restaurant at the Tanforan Park
Shopping Center, San Bruno, California.
We find, on the basis of the foregoing, that Re-
spondents are, and have been at all times material
herein, employers 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.
II. THE LABOR ORGANIZATION INVOLVED
San Mateo Bartenders and Culinary Workers
Union, Local 340, 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 Respondents consti-
tute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act.:
All buspersons, supply persons, janitors and
dishwashers employed by the Employers in the
common area of the International Restaurant at
their Tanforan Park Shopping Center, San Bru-
no, California, location, excluding office clerical
employees, guards and supervisors as defined in
the Act.
2. The certification
On January 14, 1978, a majority of the employees
of Respondents in said unit, in a secret-ballot elec-
tion conducted under the supervision of the Regional
Director for Region 20, designated the Union as their
representative for the purpose of bargaining collec-
tively with Respondents. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on March 29, 1978, 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 May 1, 1978, and at all
times thereafter, including June 13, 1978, the Union
has requested Respondents to bargain collectively
with it as the exclusive collective-bargaining repre-
sentative of all the employees in the above-described
unit. Commencing on or about June 21, 1978, and
continuing at all times thereafter to date, Respon-
dents have refused, and continue to refuse, to recog-
nize and bargain with the Union as the exclusive rep-
resentative for collective bargaining of all employees
in said unit.
Accordingly, we find that Respondents have, since
June 21, 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, Respondents have en-
gaged in and are engaging in unair 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 Respondents set forth in section
III, 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 Respondents have engaged in
and are 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 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 Respondents com-
mence to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate unit. See MarJac 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:
1063
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Tanforan Park Food Purveyor's Council and
The Hap Smith Company are employers engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. San Mateo Bartenders and Culinary Workers
Union, Local 340, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All buspersons, supply persons, janitors and
dishwashers employed by the Employers in the com-
mon area of the International Restaurant at their
Tanforan Park Shopping Center, San Bruno, Califor-
nia, location excluding office clerical employees,
guards and supervisors as defined in the Act, consti-
tute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
4. Since March 29, 1978, the above-named labor
organization has been and now is the certified and
exclusive 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 June 21, 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-
spondents in the appropriate unit, Respondents have
engaged in and are engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respon-
dents have interfered with, restrained, and coerced,
and are interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby have en-
gaged in and are 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 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 Respondents,
Tanforan Park Food Purveyor's Council and The
Hap Smith Company, Tanforan Park Shopping Cen-
ter, San Bruno, California, their officers, agents, suc-
cessors, 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 San Mateo Bartenders
and Culinary Workers Union, Local 340, AFL-CIO,
as the exclusive bargaining representative of its em-
ployees in the following appropriate unit:
All buspersons, supply persons, janitors and
dishwashers employed by the Employers in the
common area of the International Restaurant at
their Tanforan Park Shopping Center, San Bru-
no, California, location, excluding office clerical
employees, guards and supervisors 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 their San Bruno, California, facilities,
copies of the attached notice marked "Appendix." 4
Copies of said notice, on forms provided by the Re-
gional Director for Region 20, after being duly
signed by Respondents' representative, shall be post-
ed by Respondents immediately upon receipt thereof
and be maintained by them for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondents 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 herewith.
4 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 Labor Relations Board" shall read Posted Pursuant 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 WIn. NOl refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with San
Mateo Bartenders and Culinary Workers Union,
1064
TANFORAN PARK FOOD PURVEYOR'S COUNCIL
Local 340, AFL-CIO, as the exclusive represen-
tative of the employees in the bargaining 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 represen-
tative 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 em-
ployment, and, if an understanding is reached,
embody such understanding in a signed agree-
ment. The bargaining unit is:
All buspersons, supply persons, janitors and
dishwashers employed by the Employers in
the common area of the International Restau-
rant at their Tanforan Park Shopping Center,
San Bruno, California, location, excluding of-
fice clerical employees, guards and supervis-
ors as defined in the Act.
TANFORAN PARK FOOD PURVEYOR'S COUNCII.
THE HAP SMITH COMPANY
1065