White Castle Systems, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 1131 (N.L.R.B. 1981)

WHITE CASTLE SYSTEMS. INC
White Castle Systems, Inc. and United Catering,
Restaurant, Bar and Hotel Workers, Local
1064, Retail, Wholesale and Department Store
Union, AFL-CIO. Case 7-CA-19337
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, ANI)
ZIMMERMAN
Upon a charge filed on May 22, 1981, by United
Catering, Restaurant, Bar and Hotel Workers,
Local 1064, Retail, Wholesale and Department
Store Union, AFL-CIO, herein called the Union,
and duly served on White Castle Systems, Inc.,
herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Re-
gional Director for Region 7, issued a complaint on
June 10, 1981, against Respondent, 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 the com-
plaint and notice of hearing before an administra-
tive 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 7, 1981,
following a Board election in Case 7-RC-16276,
the Union was duly certified as the exclusive col-
lective-bargaining representative of Respondent's
employees in the unit found appropriate;' and that,
commencing on or about May 15, 1981, and at all
times thereafter, Respondent has refused, and con-
tinues to date to refuse, to bargain collectively with
the Union as the exclusive bargaining representa-
tive, although the Union has requested and is re-
questing it to do so. On June 16, 1981, Respondent
filed its answer to the complaint admitting in part,
and denying in part, the allegations in the com-
plaint.
On June 29, 1981, counsel for the General Coun-
sel filed directly with the Board a "Motion To
Transfer Case to and Continue Proceedings Before
the Board and Motion for Summary
Judgment."Subsequently, on July 13, 1981, the
Board issued an order transferring the proceeding
to the Board and a Notice To Show Cause why
|Official notice is taken of the record in the representation prlceeding.
Case 7-RC-16276, as the term "record i defined in Sees. 126 and
102 69(g) of the Board's Rules and Regulations. Scrie, . as alm ended See
LTI' Fleczrtnvrocmn , c.., I66 Nl.R 938 (1907). erld 38X FM: ' t 53 (4th
Cir 1968): (oldlen 4gc Aeverage Co., h7 NlRBi 151 (Ig967). cnlll 415
F.2d 26 (5lh Cir 1969). Incripe ( o.. Pcell,. 20'1 FISupp 573
(D.CVa 1967): Iblnrr Corp. 164 N RBI 378 (1967), enfd 3i I1 2d 91
(71h Cir 1968). Sec (d) of the NLRA. ats mended
258 NLRB No. 149
the General Counsel's Motion for Summary Judg-
ment should not be granted. Respondent thereafter
filed a response to the 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 its answer to the complaint and its response to
the Notice To Show Cause, Respondent contests
the validity of the Union's certification. Respond-
ent admits its refusal to bargain, but denies that it
thereby violated Section 8(a)(5) and (1) of the Act.
Specifically, Respondent contends that the Union
should not have been certified as the collective-bar-
gaining representative of its employees because the
Regional Director directed an election in an inap-
propriate unit. Respondent further asserts that the
Board should reconsider its denial of review of the
Regional Director's Decision and Direction of
Election.
In his Motion for Summary Judgment, the Gen-
eral Counsel argues that there are no issues requir-
ing a hearing, and that Respondent is attempting to
relitigate issues which were raised and determined
by the Board in the underlying representation case.
We agree with the General Counsel. Review of the
record, including the record in Case 7-RC-16276,
shows that on April 3, 1981, following a hearing
and the submission of a brief by Respondent, the
Regional Director issued a Decision and Direction
of Election wherein, contrary to Respondent's con-
tention that only a multifacility unit was appropri-
ate, he found appropriate the petitioned-for single-
facility unit of all full-time and regular part-time
employees at Respondent's Fort Street, Southgate,
Michigan, facility. On April 10, 1981, Respondent
filed a request for review of the Regional Direc-
tor's decision. Respondent argued that only a mul-
tifacility unit was appropriate because the alleged
facts rebutted the presumption that a single-facility
unit is appropriate. On April 29, 1981, the Board
telegraphically denied the request for review on
the ground that the request raised no substantial
issues warranting review. On May 7, 1981, after an
election conducted by the Regional Director. the
Union was certified as the exclusive collective-bar-
gaining agent for the unit employees. By letter
dated May 15, 1981, Respondent expressly stated to
the Union that it declined a request to bargain with
the Union as the certified representative of its em-
ployees because it believed that the Board's unit
1131
DECISIONS OF NATIONAL LABOR RELATIONS H()ARD
determination in the representation proceeding had
been erroneous.
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. 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
Respondent is a Delaware corporation engaged
in the business of operating restaurants that provide
food and beverages to the general public with its
principal office and place of business located in
Farmington, Michigan. Respondent maintains other
facilities in the State of Michigan, and in various
other States, including a facility located at Fort
Street, Southgate, Michigan. During the year
ending December 31, 1980, which period is repre-
sentative of its operations during all times material
herein, Respondent, in the course and conduct of
its business operations, earned gross revenues in
excess of $500,000, and during that same period of
time it purchased food, beverages, and other goods
and materials valued in excess of $50,000 which
were transported and delivered to its place of busi-
ness in Southgate, Michigan, directly from points
located ouside the State of Michigan.
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 INVOLVED
United Catering, Restaurant, Bar and Hotel
Workers, Local 1064, Retail, Wholesale and De-
2 See Pitsbhurgh Plate Glan Co, v N.L.R.B.. 313 U.S 146, 12 (1941):
Rules and Regulations of the Board. Secs. 102.67(f) and 102.6
9(c).
partment Store Union, AFL-CIO, is a labor orga-
nization within the meaning of Section 2(5) of the
Act.
Ill. THE UNFAIR I.ABOR 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,
including castle operators, auxiliary castle op-
erators, and castle instructors, employed by
the Employer at its Fort Street, Southgate,
Michigan, facility, designated as castle unit
#20; but excluding office clerical employees,
professional employees, and guards and super-
visors as defined in the Act.
2. The certification
On April 29, 1981, 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 7, designated the Union
as their representative for the purpose of collective
bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on May 7, 1981, 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 11, 1981, 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 May 15, 1981, and continuing
at all times thereafter to date, Respondent has re-
fused, 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
May 15, 1981, 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 (1)
of the Act.
1132
WHITE CASTLE SYSTEMS, INC.
IV. THE FF.ECT 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 1, 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:
CONCIUSIONS OF LAW
1. White Castle Systems, Inc., is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. United Catering, Restaurant, Bar and Hotel
Workers, Local 1064, Retail, Wholesale and De-
partment Store Union, AFL-CIO, is a labor orga-
nization within the meaning of Section 2(5) of the
Act.
3. All full-time and regular part-time employees,
including castle operators, auxiliary castle opera-
tors, and castle instructors, employed by Respond-
ent at its Fort Street, Southgate, Michigan, facility,
designated as castle unit #20, but excluding office
clerical employees, professional employees, and
guards and supervisors as defined in the Act, con-
stitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b)
of the Act.
4. Since May 7, 1981, 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 15, 1981, 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,
White Castle Systems, Inc., Southgate, Michigan,
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 United Catering,
Restaurant, Bar and Hotel Workers, Local 1064,
Retail, Wholesale and Department Store Union,
AFL-CIO, as the exclusive bargaining representa-
tive of its employees in the following appropriate
unit:
All full-time and regular part-time employees,
including castle operators, auxiliary castle op-
erators, and castle instructors, employed by
the Employer at its Fort Street, Southgate,
Michigan, facility, designated as castle unit
#20; but excluding office clerical employees,
professional employees, and guards and super-
visors 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:
1133
DECISIONS OF NATIONAL I.ABOR RELATIONS BOARI)
(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 Fort Street, Southgate, Michigan,
facility copies of the attached notice marked "Ap-
pendix."3 Copies of said notice, on forms provided
by the Regional Director for Region 7, 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 7, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
' In he cenl that this Order is enlforced hy a Judgment o al United
States Court of Appeals, the Wkords i the noltice reading "Posted h,
Order of the Nalional Lahbor Relations Board" shall read "Pos',ted Pursu-
ant to a Judgment of the Ulnilted Stales Court of A ppeals Enfiorcing ani
Order of the National lIabor Relations tBoard"
APPENDIX
Norici. To EMPrloYi:Ls
POSTri) IY ORI)IR 01 THEI
NATIONAI. LABOR RI. ATIONS BOARD
An Agency of the United States Government
WE WIL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with United Catering, Restaurant, Bar, and
Hotel Workers, Local 1064, Retail, Wholesale
and Department Store Union, AFL-CIO, as
the exclusive representative of the employees
in the bargaining unit described below.
WE WIl.l 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. wlil., 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, including castle operators, auxiliary
castle operators, and castle instructors, em-
ployed by the Employer at its Fort Street,
Southgate, Michigan, facility, designated as
castle unit #20; but excluding office clerical
employees, professional employees, and
guards and supervisors as defined in the Act.
WHI-rT CASTI.E SYSTEMS, INC.
1134