Cocoanut Grove

National Labor Relations Board - Board Decisions

Apr 30, 1984

270 N.L.R.B. 345 (N.L.R.B. 1984)

COCOANUT GROVE
Santa Cruz Seaside Company, Inc. d/b/a Cocoanut
Grove and Wellington's Restaurant and Hotel
Employees and Restaurant Employees Interna-
tional Union, Local No. 483, AFL-CIO. Case
32-CA-6077
30 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
Upon a charge filed by the Union 21 November
1983, the General Counsel of the National Labor
Relations Board issued a complaint 15 December
1983 against the Company, the Respondent, alleg-
ing that it has violated Section 8(a)(5) and (1) of
the National Labor Relations Act.
The complaint alleges that on 25 October 1983,
following a Board election in Case 32-RC-1806,
the Union was certified as the exclusive collective-
bargaining representative of the Company's em-
ployees in the unit found appropriate. (Official
notice is taken of the "record" in the representation
proceeding as defined in the Board's Rules and
Regulations, Sees. 102.68 and 102.69(g), amended
Sept. 9, 1981, 46 Fed.Reg. 45922 (1981); Frontier
Hotel, 265 NLRB 343 (1982).) The complaint fur-
ther alleges that since 9 November 1983 the Com-
pany has refused to bargain with the Union. On 22
December 1983 the Company filed its answer ad-
mitting in part and denying in part the allegations
in the complaint.
On 23 January 1984 the General Counsel filed a
Motion for Summary Judgment. On 26 January
1984 the Board issued an order transferring the
proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The
Company filed a response.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on Motion for Summary Judgment
In its answer to the complaint and its response in
opposition to the Motion for Summary Judgment,
the Company admits that the Union has requested
and it has refused to bargain, but contends that the
Union's certification is invalid because the unit cer-
tified is inappropriate for the purposes of collective
bargaining, and because of the objections to the
election and the failure to hold a hearing on "inde-
pendent investigation"' on those objections. 2 The
General Counsel argues that all material issues
have been previously considered 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
record in Case 32-RC-1806, establishes that 7
April 1983 the Union filed a representation petition
under Section 9(c) of the National Labor Relations
Act. On 28 July 1983, after a hearing, the Regional
Director issued a Decision and Direction of Elec-
tion which provided that an election be conducted
in the following unit, which he found appropriate:
All full-time and regular part-time employees
employed by the Company at its Wellington's
Restaurant and Cocoanut Grove facilities, in-
cluding facility services workers; excluding
cashiers, musicians, entertainers, restroom ma-
trons, maintenance employees, office clerical
employees, guards and supervisors as defined
in the Act.
On 9 August 1983 the Company timely filed with
the Board a request for review of the Regional Di-
rector's determination that the unit is appropriate.
The election was conducted as scheduled 28
August 1983 and the ballots were impounded,
pending the Board's decision on the Company's re-
quest for review.
On I September 1983 the Board, by mailgram,
denied the Company's request for review.3 On 7
September 1983 the impounded ballots were
opened and counted and the tally was 42 for and
29 against the Union, with 7 challenged ballots, a
number insufficient to affect the results of the elec-
tion. The Company filed timely objections to con-
duct affecting the results of the election,' alleging,
I The Regional Director had conducted an investigation of the objec-
tions, and a hearing also had been conducted on the appropriateness of
the unit, the subject of one of the objections. The Respondent has failed
to present evidence that the investigation was not properly conducted.
2 In its response in opposition to the Motion for Summary Judgment,
the Company also contends that the motion is premature because the
Board has not yet ruled on its request for review of the Regional Direc-
tor's supplemental decision in the underlying representation proceeding.
A pending request for review stays neither a certification nor the result-
ing obligation to bargain and, therefore, does not affect the ripeness of a
complaint alleging an unlawful refusal to bargain. See National Labor
Relations Board Rules and Regulations, Sec. 102.67(b). In any event, as
noted below, the Board by telegraphic order 2 March 1984 denied the
Respondent's request for review prior to the Board's consideration of this
case. We, accordingly, find no merit in the Company's contention. See
Hyatt Regency New Orleans, 260 NLRB 534, 536 fn. 5 (1982), enfd. No.
82-8146 (11th Cir. June 21, 1983).
The Company in its answer also contends that the Motion for Summa-
ry Judgment should be denied because it fails to state a claim on which
relief may be granted. We find no merit to this contention.
I Member Hunter dissented.
4 On 20 September 1982 the Company also filed with the Board a
motion for reconsideration of its I September 1983 order denying its re-
Continued
270 NLRB No. 62
345
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
essentially, that the Union engaged in objectionable
conduct by: (1) telling employees that the Compa-
ny was attempting to illegally include nonunit em-
ployees among the eligible voters; (2) making im-
proper promises to waive initiation fees; (3) making
improper promises of health and welfare benefits
and making material misrepresentations about those
benefits; and (4) making other promises, threats,
and misrepresentations, including misrepresenta-
tions about the Board's processes. The Company
also repeated its contention that the unit is inappro-
priate.
After investigation, the Regional Director on 25
October 1983 issued a Supplemental Decision and
Certification of Representative in which he over-
ruled the Company's objections in their entirety
and certified the Union as the exclusive bargaining
representative of the employees in the unit found
appropriate. On 16 November 1983 the Company
filed a timely request for review of the Regional
Director's supplemental decision, reiterating its ob-
jections and requesting that these objections be sus-
tained. It also requested a hearing or independent
investigation. By telegraphic order of 2 March
1984, the Board denied the Company's request for
review,5 thereby finding in effect not only that the
Company's objections did not warrant overturning
the election, but also that those objections did not
raise substantial material issues warranting a hear-
ing.
It is well settled that in the absence of newly dis-
covered and 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 that were or could have been
litigated in a prior representation proceeding. See
Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162
(1941); Secs. 102.67(f) and 102.69(c) of the Board's
Rules and Regulations.
All issues raised by the Company were or could
have been litigated in the prior representation pro-
ceeding. The Company does not offer to adduce at
a hearing any newly discovered and previously un-
available evidence, nor does it allege any special
circumstances that would require the Board to re-
examine the decision made in the representation
proceeding. We therefore find that the Company
has not raised any issue that is properly litigable in
this unfair labor practice proceeding. Accordingly
we grant the Motion for Summary Judgment.
quest for review of the Decision and Direction of Election. On 23 Sep-
tember 1983 the Deputy Executive Secretary of the Board found the
motion for reconsideration untimely and denied it on that basis.
a In conformity with his earlier vote on unit scope, Member Hunter
dissented.
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Company, a California corporation, is en-
gaged in the retail operation of a public amuse-
ment/entertainment facility in Santa Cruz, Califor-
nia, where during the past 12 months in the course
and conduct of its business it derived gross reve-
nues in excess of $500,000 and purchased and re-
ceived goods or services valued in excess of $5,000
which originated outside the State of California.
We find that the Company 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 or-
ganization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held 28 August 1983 the
Union was certified 25 October 1983 as the collec-
tive-bargaining representative of the employees in
the following appropriate unit:
All full-time and regular part-time employees
employed by the Company at its Wellington's
Restaurant and Cocoanut Grove facilities, in-
cluding facility services workers; excluding
cashiers, musicians, entertainers, restroom ma-
trons, maintenance employees, office clerical
employees, guards and supervisors as defined
in the Act.
The Union continues to be the exclusive represent-
ative under Section 9(a) of the Act.
B. Refusal to Bargain
Since 1 November 1983 the Union has requested
the Company to bargain, and since 9 November
1983 the Company has refused. We find that this
refusal constitutes an unlawful refusal to bargain in
violation of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing on and after 9 November 1983 to
bargain with the Union as the exclusive collective-
bargaining representative of employees in the ap-
propriate unit, the Company 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.
346
COCOANUT GROVE
REMEDY
Having found that the Respondent has violated
Section 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 understanding in a signed agreement.
To ensure that the employees are accorded the
services of their selected bargaining agent for the
period provided by law, we shall construe the ini-
tial period of the certification as beginning the date
the Respondent 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, Santa Cruz Seaside Company, Inc.
d/b/a Cocoanut Grove and Wellington's Restau-
rant, Santa Cruz, California, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Hotel Employees
and Restaurant Employees International Union,
Local No. 483, AFL-CIO, as the exclusive bar-
gaining representative of the employees in the bar-
gaining unit.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain with the Union as the ex-
clusive representative of the employees in the fol-
lowing appropriate unit on terms and conditions of
employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All full-time and regular part-time employees
employed by the Company at its Wellington's
Restaurant and Cocoanut Grove facilities, in-
cluding facility services workers; excluding
cashiers, musicians, entertainers, restroom ma-
trons, maintenance employees, office clerical
employees, guards and supervisors as defined
in the Act.
(b) Post at its facility in Santa Cruz, California,
copies of the attached notice marked "Appendix." 6
I 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
Copies of the notice, on forms provided by the Re-
gional Director for Region 32, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt 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 notices are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
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 ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Hotel Em-
ployees and Restaurant Employees International
Union, Local No. 483, 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 exer-
cise 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 full-time and regular part-time employees
employed by us at our Wellington's Restaurant
and Cocoanut Grove facilities, including facili-
ty services workers; excluding cashiers, musi-
cians, entertainers, restroom matrons, mainte-
nance employees, office clerical employees,
guards and supervisors as defined in the Act.
SANTA CRUZ SEASIDE COMPANY,
INC. D/B/A COCOANUT GROVE AND
WELLINGTON'S RESTAURANT
347