Cindy's Restaurants, Inc.

National Labor Relations Board - Board Decisions

Apr 18, 1977

229 N.L.R.B. 41 (N.L.R.B. 1977)

CINDY'S RESTAURANTS, INC.
Cindy's Restaurants, Inc. and Hotel, Motel, Restau-
rant Employees and Bartenders Union, Local # 19.
Case 20-CA-12028
April 18, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
Upon a charge filed on October 12, 1976, by Hotel,
Motel, Restaurant Employees and Bartenders Union
Local # 19, herein called the Union, and duly served
on Cindy's Restaurants, Inc., herein called Respon-
dent, the General Counsel of the National Labor
Relations Board, by the Regional Director for
Region 20, issued a complaint and notice of hearing
on November 9, 1976, 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, complaint, and
notice of hearing before an Administrative 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 September 7,
1976, following a Board election in Case 20-RC-
13294 the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate; and that,
commencing on or about September 7, 1976, and at
all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining represen-
tative, although the Union has requested and is
requesting it to do so. On November 16, 1976,
Respondent filed its answer to the complaint
admitting in part, and denying in part, the allegations
in the complaint.
On December 17, 1976, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment and a motion to strike portions
of Respondent's answer, with a supporting brief.
Subsequently, on December 29, 1976, the Board
' Official notice is taken of the record in the representation proceeding,
Case 20-RC-13294, 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 (C.A. 4,
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(C.A. 5, 1969): Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967);
Follerr Corp., 164 NLRB 378 (1967). enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA, as amended.
2 In its response to the Notice To Show Cause, Respondent alleged that
it had not been provided or served with a copy of the General Counsel's
Motion for Summary Judgment and to stnke portions of Respondent's
answer. In his opposition to Respondent's motion to return, the General
Counsel has attached as Appendixes A and B copies of an affidavit of
229 NLRB No. 16
issued an order transferring the proceeding 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 an entry of
appearance and response to "Notice To Show Cause
and Motion for Return of Case No. 20-RC-13294
and Appurtenant File be Returned to the Regional
Director, Region 20, with Instructions." Thereafter,
the General Counsel filed an opposition to Respon-
dent's motion for return. 2
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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 response to the
Notice To Show Cause, Respondent denies the
jurisdictional facts as to out-of-state purchases, the
Union's status as a labor organization, the appropri-
ateness of the unit, and the Union's majority status.
Counsel for the General Counsel contends, on the
other hand, that these issues were raised or could
have been raised in the underlying representation
case and may not be relitigated. We agree.
Review of the record herein, including that in Case
20-RC-13294, discloses that, after a hearing in the
representation case, the Regional Director issued, on
July 21, 1976, a Decision and Direction of Election
in which she found, inter alia, that (1) during the 12
months preceding the hearing Respondent purchased
and received from outside California more than
$10,000 worth of supplies; (2) the Union was a labor
organization; and (3) a unit limited to Respondent's
Morgan Hill Restaurant was appropriate, contrary to
Respondent's contention for a broader unit. In the
election held on August 27, 1976, the tally of ballots
furnished that day showed that nine votes were cast
for, and eight against, the Union, with no challenged
ballots.3 On September 3, Respondent mailed objec-
tions to the election to the Regional Office. On
September 7, the Regional Director returned the
September 3 letter on the ground that it should have
service and of a return receipt card. These appendixes, as well as
Respondent's timely responses herein, establish that Respondent was served
with the General Counsel's motions and was not prejudiced in its defense
against them.
3 The tally of ballots shows that on I. 2, "Void ballots," the word "one"
is written in; on I. 7, "Valid votes counted," is the figure "17"; on i. 8,
"Challenged ballots," there is a "zero" and the word "one" both lined out;
on 1. 9, "Valid votes counted plus challenged ballots," is the figure "18"; on
I. 10, "Challenges are not sufficient in number to affect the results of the
election," the word "not" is circled; and on I. I I, "A majority of valid votes
counted plus challenged ballots (item 9) has not been cast for: Petitioner."
the word "not" has been stricken.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been received in the Regional Office no later than
September 3, 1976, but in fact was not received until
September 7, more than 5 working days after August
27, and therefore was not timely filed.4 Accordingly,
the same day, in the absence of any objections filed
to the tally of ballots and to the conduct of the
election within the time provided therefor, the
Regional Director certified the Union as the exclu-
sive representative in the unit found appropriate.
Respondent failed to file with the Board a request for
review of the Regional Director's rejection of its
objections as untimely and her subsequent certifica-
tion of the Union. It thus appears that Respondent is
attempting to raise issues which were, or could have
been, timely raised in the underlying representation
proceeding and which it did not raise to the Board.
This it may not do.5
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
special circumstances a respondent in a proceeding
alleging 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.6
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior
representation proceeding, and Respondent does not
offer to adduce at a hearing any newly discovered 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. We shall, accordingly, grant the Motion
for Summary Judgment 7 and deny Respondent's
motion for return of Case 20-RC- 13294.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent, a California corporation having a
place of business in Morgan Hill, California, is
engaged in the operation of seven restaurants at
separate locations in northern California. During the
past 12 months, Respondents received gross revenues
4 In rejecting Respondent's objections as untimely, the Regional Director
inadvertently cited Sec. 102.67 of the Board's Rules and Regulations, rather
than Sec. 102.69.
5 In its answer to the complaint Respondent denied the out-of-state
purchases of supplies valued in excess of $10,000, the Union's status as a
labor organization, the appropriateness of the unit of Morgan Hill
employees, and the majority status of the Union. These issues, raised by the
denials of the answer and in the response, were resolved in the underlying
representation case and were not raised with the Board. In its response,
Respondent now raises the issue of (1) the ambiguity of the tally of ballots
establishing the Union's majority status, and (2) the timeliness of its
in excess of $500,000 and purchased and received
supplies valued in excess of $10,000 which were
shipped to it from points outside the State of
California.
We find, on the basis of the foregoing, that
Respondent 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
Hotel, Motel, Restaurant Employees and Bartend-
ers Union, Local # 19, 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 Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All employees employed by the Employer at its
location in Morgan Hill, California, including
cooks, waitresses, bus girls, bus boys and dish-
washers; excluding guards and supervisors as
defined in the Act.
2. The certification
On August 27, 1976, 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 20, 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 September 7, 1976, and the Union
continues to be such exclusive representative within
the meaning of Section 9(a) of the Act.
objections rejected by the Regional Director. These two issues were matters
that could have been, but were not, raised in the underlying representation
case before the Board. In any event, we find that the tally of ballots is
sufficiently clear to support the Union's majority status and that the
Regional Director properly rejected Respondent's objection as untimely
filed.
6 See Pittsburgh Plate Glass Co. v. N.LRB., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
7 In view of our determination herein, we deem it unnecessary to rule
upon the General Counsel's motion to strike portions of Respondent's
answer.
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CINDY'S RESTAURANTS, INC.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about September 7, 1976, and
at all times thereafter, the Union has requested
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about September 7, 1976, 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 representa-
tive for collective bargaining of all employees in said
unit.
Accordingly, we find that Respondent has, since
September 7, 1976, 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, Respon-
dent 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 opera-
tions described in section 1, above, have a close,
intimate, 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 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
appropriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
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
(C.A. 5, 1964), cert. denied 379 U.S. 817 (1964);
Burnett Construction Company, 149 NLRB 1419, 1421
(1964), enfd. 350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Cindy's Restaurants, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Hotel, Motel, Restaurant Employees and
Bartenders Union, Local # 19, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All employees employed by the Employer at its
location in Morgan Hill, California, including cooks,
waitresses, bus girls, bus boys and dishwashers;
excluding guards and supervisors as defined in the
Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
4. Since September 7, 1976, 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 September 7, 1976,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the
exclusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(aX5) of the
Act.
6. By the aforesaid refusal to bargain, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees in the exercise of the rights guaranteed them in
Section 7 of the Act, and thereby has engaged 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 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
Relations Board hereby orders that the Respondent,
Cindy's Restaurants, Inc., Morgan Hill, California,
its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Hotel, Motel, Res-
taurant Employees and Bartenders Union, Local
43
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
# 19, as the exclusive bargaining representative of its
employees in the following appropriate unit:
All employees employed by the Employer at its
location in Morgan Hill, California, including
cooks, waitresses, bus girls, bus boys and dish-
washers; excluding 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 its location in Morgan Hill, California,
copies of the attached notice marked "Appendix." 8
Copies of said notice, on forms provided by the
Regional Director for Region 20, 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,
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.
8 In the event that 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."
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,
Motel, Restaurant Employees and Bartenders
Union, Local # 19, 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 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
described below, with respect to rates of pay,
wages, 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 employees employed by the Employer at
its location in Morgan Hill, California,
including cooks, waitresses, bus girls, bus
boys and dishwashers; excluding guards and
supervisors as defined in the Act.
CINDY'S RESTAURANTS,
INC.
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