Dobbs Houses, Inc.

National Labor Relations Board - Board Decisions

Dec 8, 1977

233 N.L.R.B. 1021 (N.L.R.B. 1977)

DOBBS HOUSES, INC.
Dobbs Houses, Inc. and District 146, International
Association of Machinists and Aerospace Workers,
AFL-CIO. Case 23-CA-6542
December 8, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
Upon a charge filed on May 31, 1977, by District
146, International Association of Machinists and
Aerospace Workers, AFL-CIO, herein called the
Union, and duly served on Dobbs Houses, Inc.,
herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Regional
Director for Region 23, issued a complaint and
notice of hearing on June 21, 1977, against Respon-
dent, 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 Adminis-
trative 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 November 30,
1976, following a Board election in Case 23-RC-
4408, 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 November 30, 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 or about June 29, 1977,
Respondent filed its answer to the complaint
admitting in part, and denying in part, the allegations
in the complaint.
On July 28, 1977, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on August 9, 1977, the
Board 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 a
response to Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
t Official notice is taken of the record in the representation proceeding,
Case 23-RC-4408, 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,
233 NLRB No. 141
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 disputes the
validity of the Union's certification in the underlying
representation proceeding on the basis of its election
objections and the disposition of certain challenged
ballots.
Review of the record herein, including that in the
representation proceeding, Case 23-RC-4408, shows
that an election conducted on October 1, 1976,
pursuant to a Decision and Direction of Election,
resulted in a vote of 59 for, and 47 against, the Union
with 15 challenged ballots which were sufficient in
number to affect the election results. Thereafter,
Respondent filed timely objections to the election.
Petitioner also filed timely objections to the election,
but subsequently withdrew them. Respondent's eight
objections alleged in substance that the Union: (1)
made misrepresentations; (2) made threats; (3)
campaigned at proscribed times and areas; (4) made
objectionable promises of benefit; (5) injected racial
and other irrelevant propaganda into the campaign;
and (6) unlawfully used supervisors as union agents
during the campaign. After investigation, the Re-
gional Director issued on November 30, 1976, his
Supplemental Decision and Certification of Repre-
sentative in which he overruled the objections in
their entirety, sustained the challenges to nine
ballots, observed that the six remaining challenged
ballots were no longer determinative, and certified
the Union.
Respondent filed a timely request for review of the
Regional Director's Supplemental Decision and
Certification of Representative, reiterating 5 of its
objections and contending that 13 of the challenged
ballots should be opened and counted. On January
26, 1977, the Board granted Respondent's request for
review only as to Objections 2 and 3, denied review
in all other respects, and remanded the case to the
Regional Director for investigation and further
appropriate action concerning Objections 2 and 3
which alleged that union agents and others made
threats against employees and campaigned at objec-
tionable times and in proscribed areas.
On February 22, 1977, the Regional Director
issued a Second Supplemental Decision in which he
overruled Objections 2 and 3 in their entirety, finding
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);
Follett Corp.. 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA, as amended.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that they raised no issues which warranted setting
aside the election.
Respondent filed a timely request for review of the
Regional Director's Second Supplemental Decision
contending that the Regional Director improperly
investigated Objections 2 and 3. On March 30, 1977,
the Board denied Respondent's request for review of
the Regional Director's Second Supplemental Deci-
sion as it raised no substantial issues warranting
review.
In its response to the Notice To Show Cause,
Respondent contends that it is entitled to a hearing
on the issues raised by Objections 2, 3, 6, and 7 and
by the challenges to 13 ballots. We find no merit in
this contention. By its January 26 and March 30,
1977, responses to Respondent's requests for review
of the Regional Director's supplemental decisions,
the Board necessarily found that there were no
substantial or material issues warranting a hearing.
Where, as here, Respondent failed to raise substan-
tial or material issues in the representation case
below, the Board has held, with judicial approval,
that an evidentiary hearing is not required.2
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. 3
All issues raised by the 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. 4
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Delaware corporation, maintains
facilities in various cities throughout the United
States where it is engaged in the production and
catering of food and beverages for airlines. During
2 Handy Hardware Wholesale, Inc., 222 NLRB 373 (1976); Janler Plastic
Mold Corporation, 191 NLRB 162 (1971); Crest Leather Manufacturing
Corporation, 167 NLRB 1085 (1967), and cases cited therein.
3 See Pittsburgh 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).
the past 12 months, Respondent purchased and
received goods valued in excess of $50,000 at its
Houston, Texas, facility directly from firms located
at points outside the State of Texas.
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
District 146, International Association of Machin-
ists and Aerospace Workers, 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 the Respondent
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All full-time and regular part-time employees
employed by the Employer at its 4730 Wright
Road, Houston, Texas, facility, excluding all
office clerical employees, guards and supervisors
as defined in the Act.
2. The certification
On October 1, 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 23, 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 November 30, 1976, 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 November 30, 1976, and
at all times thereafter, the Union has requested
Respondent to bargain collectively with it as the
4 Respondent has requested oral argument on the Motion for Summary
Judgment. Its request is hereby denied as the record, the Motion for
Summary Judgment, and Respondent's response to the Notice To Show
Cause adequately present the issues and the positions of the panics.
1022
DOBBS HOUSES, INC.
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about November 30, 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
November 30, 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 I, 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
I. Dobbs Houses, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. District 146, International Association of
Machinists and Aerospace Workers, AFL-CIO, is a
labor organization within the meaning of Section 2(5)
of the Act.
3. All full-time and regular part-time employees
employed by the Employer at its 4730 Wright Road,
Houston, Texas, facility, excluding all office clerical
employees, 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 November 30, 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 November 30, 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(a)(5) 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 to 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 Respondent,
Dobbs Houses, Inc., Houston, Texas, 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 District 146, Interna-
tional Association of Machinists and Aerospace
Workers, AFL-CIO, as the exclusive bargaining
representative of its employees in the following
appropriate unit:
1023
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All full-time and regular part-time employees
employed by the Employer at its 4730 Wright
Road, Houston, Texas, facility, excluding all
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 its Houston, Texas, facility copies of the
attached notice marked "Appendix." 5 Copies of said
notice, on forms provided by the Regional Director
for Region 23, after being duly signed by Respon-
dent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
5 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 District
146, International Association of Machinists and
Aerospace Workers, AFL-CIO, 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 full-time and regular part-time employ-
ees employed by the Employer at its 4730
Wright Road, Houston, Texas, facility,
excluding office clerical employees, guards
and supervisors as defined in the Act.
DOBBs HOUSES, INC.
1024