Aramark Corp.

National Labor Relations Board - Board Decisions

Jul 25, 1997

324 N.L.R.B. 10 (N.L.R.B. 1997)

1
324 NLRB No. 10
1 We note that the validity of the Board’s decision in Management
Training has recently been upheld by the Fourth and Sixth Circuits.
See Pikeville United Methodist Hospital of Kentucky v. Steelworkers,
109 F.3d 1146 (6th Cir. 1997); and Teledyne Economic Development
Corp. v. NLRB, 108 F.3d 56 (4th Cir. 1997).
2 Member Higgins notes that he has previously voted in other
cases to reconsider the Board’s continued adherence to Management
Training. However, he agrees with his colleagues that the Respond-
ent has raised no new issues in this ‘‘technical’’ 8(a)(5) proceeding
warranting a hearing.
NOTICE: This opinion is subject to formal revision before publication
in the Board volumes of NLRB decisions. Readers are requested to
notify the Executive Secretary, National Labor Relations Board,
Washington, D.C. 20570, of any typographical or other formal er-
rors so that corrections can be included in the bound volumes.
Aramark Corporation and International Union of
Operating Engineers, Local 456, AFL–CIO.
Case 11–CA–17497
July 25, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
Pursuant to a charge and an amended charge filed
on May 6 and 19, 1997, the General Counsel of the
National Labor Relations Board issued a Complaint
and Notice of Hearing on June 4, 1997, alleging that
the Respondent has violated Section 8(a)(5) and (1) of
the National Labor Relations Act by refusing the
Union’s request to bargain following the Union’s cer-
tification in Case 11–RC–6190. (Official notice is
taken of the ‘‘record’’ in the representation proceeding
as defined in the Board’s Rules and Regulations, Secs.
102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343
(1982).) The Respondent filed an answer admitting in
part and denying in part the allegations in the com-
plaint and asserting affirmative defenses.
On June 30, 1997, the General Counsel filed a Mo-
tion for Summary Judgment and Memorandum in Sup-
port. On July 1, 1997, the Board issued an order trans-
ferring the proceeding to the Board and a Notice to
Show Cause why the motion should not be granted.
On July 14, 1997, the Respondent filed a response.
Ruling on Motion for Summary Judgment
In its answer and response the Respondent admits its
refusal to bargain, but attacks the validity of the cer-
tification on the grounds that the Board erroneously as-
serted jurisdiction over the Respondent in the represen-
tation proceeding. The Respondent urges the Board to
reexamine the new legal standard for asserting jurisdic-
tion the Board announced in Management Training
Corp., 317 NLRB 1355 (1995), as well as its deter-
mination in the representation proceeding that the Re-
spondent is within the Board’s jurisdiction under that
standard.
All representation issues raised by the Respondent
were or could have been litigated in the prior represen-
tation proceeding. The Respondent does not offer to
adduce at a hearing any newly discovered and pre-
viously unavailable evidence, nor does it allege any
special circumstances that would require the Board to
reexamine the decision made in the representation pro-
ceeding.1 We therefore find that the Respondent has
not raised any representation issue that is properly lit-
igable in this unfair labor practice proceeding. See
Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146,
162 (1941). Accordingly, we grant the Motion for
Summary Judgment.2
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is now, and has been at all times
material herein, a Delaware corporation with a jobsite
located at The Citadel, the Military College of South
Carolina, in Charleston, South Carolina, where it is en-
gaged in the business of providing food service.
During the 12-month period preceding the issuance
of the complaint, which period is representative of all
times material herein, the Respondent purchased and
received at its Charleston, South Carolina jobsite goods
and materials valued in excess of $50,000 directly
from points outside the State of South Carolina and de-
rived gross revenues in excess of $500,000.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act and that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held April 16, 1997, the
Union was certified on April 24, 1997, as the exclusive
collective-bargaining representative of the employees
in the following appropriate unit:
All food service workers employed by Aramark
Corporation at The Citadel, including all salad
makers, bakers, cooks, utility employees, wait-
resses, head waitresses, and p.m. chef; excluding
all office clerical employees, professional employ-
ees, the food service director, assistant food serv-
ice director, production managers, dining room
managers, catering supervisor, a.m. chef, snack
bar manager, assistant snack bar manager, guards,
and supervisors as defined in the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
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2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 If 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
B. Refusal to Bargain
Since about April 29, 1997, the Union has requested
the Respondent to bargain, and, since about May 2,
1997, the Respondent has refused. We find that this re-
fusal constitutes an unlawful refusal to bargain in vio-
lation of Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
By refusing on and after May 2, 1997, to recognize
and bargain with the Union as the exclusive collective-
bargaining representative of employees in the appro-
priate unit, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of
Section 8(a)(5) and (1) and Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act, we shall order it to
cease and desist, to bargain on request with the Union,
and, if an understanding is reached, to embody the un-
derstanding in a signed agreement.
To ensure that the employees are accorded the serv-
ices of their selected bargaining agent for the period
provided by the law, we shall construe the initial pe-
riod of the certification as beginning the date the Re-
spondent begins to bargain in good faith with the
Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962);
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817
(1964); Burnett Construction Co., 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, Aramark Corporation, Charleston, South
Carolina, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain with International Union of
Operating Engineers, Local 465, AFL–CIO, as the ex-
clusive bargaining representative of the employees.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive representative of the employees in the following
appropriate unit on terms and conditions of employ-
ment, and if an understanding is reached, embody the
understanding in a signed agreement:
All food service workers employed by Aramark
Corporation at The Citadel, including all salad
makers, bakers, cooks, utility employees, wait-
resses, head waitresses, and p.m. chef; excluding
all office clerical employees, professional employ-
ees, the food service director, assistant food serv-
ice director, production managers, dining room
managers, catering supervisor, a.m. chef, snack
bar manager, assistant snack bar manager, guards,
and supervisors as defined in the Act.
(b) Within 14 days after service by the Region, post
at its facility in Charleston, South Carolina, copies of
the attached notice marked ‘‘Appendix.’’3 Copies of
the notice, on forms provided by the Regional Director
for Region 11 after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in
conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of
business or closed the facility involved in these pro-
ceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since May 6, 1997.
(c)Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. July 25, 1997
llllllllllllllllll
William B. Gould IV, Chairman
llllllllllllllllll
Sarah M. Fox, Member
llllllllllllllllll
John E. Higgins, Jr., Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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3ARAMARK CORPORATION
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with International
Union of Operating Engineers, Local 465, AFL–CIO,
as the exclusive representative of the employees in the
bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and
put in writing and sign any agreement reached on
terms and conditions of employment for our employees
in the bargaining unit:
All food service workers employed by us at The
Citadel, including all salad makers, bakers, cooks,
utility employees, waitresses, head waitresses, and
p.m. chef; excluding all office clerical employees,
professional employees, the food service director,
assistant food service director, production man-
agers, dining room managers, catering supervisor,
a.m. chef, snack bar manager, assistant snack bar
manager, guards, and supervisors as defined in the
Act.
ARAMARK CORPORATION
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