Frisch's Big Boy Ill-Mar, Inc.

National Labor Relations Board - Board Decisions

Mar 5, 1965

151 N.L.R.B. 454 (N.L.R.B. 1965)

454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
own choosing , and to engage in other concerted activities for the purpose of
collective bargaining or other material aid or protection , or to refrain from any
or all such activities.
RON KVARFORDT , d/b/a FRED & SONS O.K. RUBBER WELDERS,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-We will notify any of the above -named employees if presently serving in
the Armed Forces of the United States of their right to full reinstatement upon appli-
cation in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act of 1948 , as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 327 Logan
Building, 500 Union Street , Seattle, Washington , Telephone No. 682-3300 , if they
have any questions concerning this notice or compliance with its provisions.
Frisch 's Big Boy Ill -Mar, Inc. and Hotel, Motel , Cafeteria &
Restaurant Employees ' and Bartenders Union, Local No. 58,.
AFL-CIO. Case No. 25-CA-2010. March 5, 1965
DECISION AND ORDER
Upon a supplemental charge duly filed on October 6, 1964, by
Hotel, Motel, Cafeteria & Restaurant Employees' and Bartenders
Union, Local No. 58, AFL-CIO (hereinafter called the Union),
the General Counsel of the National Labor Relations Board, by
the Director for Region 25, issued a complaint and notice of hearing
on November 30, 1964, alleging that Frisch's Big Boy Ill-Mar, Inc.
(hereinafter called Respondent) had engaged in and was engaging
in unfair labor practices affecting commerce within the meaning of
'Section 8(a) (1) and (5) and Section 2(6) and (7) of the National
Labor Relations Act, as amended. Copies of the charge, complaint,
and notice of hearing, were duly served upon the Respondent.
The complaint alleged in substance that since on or about Septem-
ber 4, 1964, the Union has been certified as the exclusive represen-
tative for collective-bargaining purposes, of "all regular and all
regular part-time employees, at the Respondent's restaurant at
51 North Illinois Street, Indianapolis, Indiana, including cashiers,
exclusive of all office clerical employees, managers, assistant man-
agers, professional employees, guards, and supervisors as defined in
the Act"; and that on September 12 and 21, 1964, and at all times
thereafter Respondent has refused to bargain with the Union as
the exclusive representative of the employees in the above-described
unit. Respondent's answer admitted the complaint's allegations
relating to the Union's certification, the Union's request for bargain-
ing, and Respondent's refusal to bargain with the Union. Respond-
ent denied, however, that the Union is the exclusive representative
151 NLRB No. 48.
FRISCH'S BIG BOY ILL-MAR, INC. 455
of its employees within the meaning of Section 9(a) of the Act,
and, that the unit for which the Union was certified is appropriate
for purposes for collective-bargaining within the meaning of Section
9 (b) of the Act.
On December 9, 1964, all parties to this proceeding entered into
a stipulation of facts. They agreed that the formal papers and
the stipulation of facts, together with the documents incorporated
by reference therein, constitute the entire record in the case, and
that no oral testimony would be necessary or desired by any of
the parties. They further waived a hearing before a Trial Examiner
and agreed to submit this case directly to the Board for findings of
fact, conclusions of law, and an order.
By Order dated December 18, 1964, the Board approved the
stipulation and made it part of the record herein. The Board
fixed a time for the filing of briefs, and thereafter the Charging
Party and the Respondent filed briefs in support of their con-
tentions. None of the parties requested oral argument.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the National Labor Relations Board has delegated
its powers in connection with this case to a three-member panel
[Chairman McCulloch and Members Fanning and Brown].
Upon the basis of the aforesaid stipulation and the entire record
in the case, including the charge, the complaint, the answer, and
the briefs, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESSS OF THE RESPONDENT
The complaint alleges and Respondent admits that Respondent,
and 11 other corporations which operate Frisch's stores, are now,
and at all times material herein have been, a single employer engaged
in commerce within the meaning of the Act, that during 1964,
this Employer sold and distributed products, the gross value of
which exceeded $500,000, an dthat this Employer received goods
valued in excess of $50,000, which were transported in interstate
commerce directly from States of the United States other than
the State of Indiana.
Accordingly we find that the 12 corporations constitute a single
employer for jurisdictional purposes, that their combined operations
meet the Board's jurisdictional standards, and that it will effectuate
the purposes of the Act to assert 'jurisdiction over the Respondent
herein.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent admits, and we find, that the
Union is a labor organization within the meaning of the Act.
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
The complaint alleges that : on or about July 14, 1964, in a
representation proceeding, a majority of the employees in an
appropriate bargaining unit consisting of all regular and all regular
part-time employees at the Respondent's restaurant at 51 North
Illinois Street, Indianapolis, Indiana, including cashiers, exclusive
of assistant managers, professional employees, guards, and super-
visors as definded in the Act, designated or selected the Union as
their representative for the purposes of collective bargaining in a
secret election conducted under the supervision of the Regional
Director for Region 25 of the Board; on or about September 4, 1964,
the Union was certified by the Board as the representative of the
employees in said unit; and on or about September 12 and 21, 1964,
the Union, in writing, requested Respondent to bargain collectively
with the Union as the exclusive bargaining representative of all
the employees in said unit with respect to their working conditions,
but that, at all times since on or about September 19 and 22, 1964,
Respondent has refused to honor the request.
As has been indicated above, Respondent defends its refusal
to bargain on basically the ground that the Board's appropriate
unit finding in the representation proceeding was erroneous.' We
reject this defense as without merit. It is well established that
absent newly discovered evidence, the issues as to the appropriate-
ness of a bargaining unit that have been raised and determined
in a prior representation proceeding may not be relitigated in a
subsequent related complaint proceeding .2 Respondent in this pro-
ceeding has presented no new or material evidence which would
warrant our reconsideration of our unit findings in the representa-
tion proceeding. We adhere to our finding in the representation
proceeding with regard to the appropriate unit.
Upon our review of the entire record in this case, we conclude
that the Union was selected on or about July 14, 1964, by a majority
of employees in the appropriate unit described above as their
representative for the purposes of collective bargaining; that at
all times since September 4, 1964, the Union has been the duly
certified representative of the employees in the above-described
appropriate unit, and by virtue of Section 9 (a) of the Act has been,
and is now, the exclusive representative of the employees in the
appropriate unit for the purposes of collective bargaining. Accord-
ingly, we find that by refusing to bargain collectively with the
' See Frisch's Big Boy Ill -Mar, Inc., 147 NLRB 551.
a S. D. Warren Company, 150 NLRB 288.
FRISCH'S BIG BOY ILL-MAR, INC. 457
certified representative of its employees, the Respondent 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 acts of the Respondent described in section III, above,
occurring in connection with the operations described in section I,
above, have a close, intimate , and substantial relation 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 commerce.
V. THE REMEDY
Having found that the Respondent has engaged in and is engaging
in certain unfair labor practices , we shall order it to cease and
desist therefrom , and to take certain affirmative action designed
to effectuate the purposes of the Act.
Upon the foregoing findings of fact, and upon the entire record
in this case , the Board makes the following :
CONCLUSIONS OF LAW
1. Hotel, Motel , Cafeteria & Restaurant Employees ' & Bartenders
Union, Local No. 58, AFL-CIO , affiliated with Hotel & Restaurant
Employees and Bartenders International Union, AFL -CIO, is a
labor organization within the meaning of Section 2 ( 5) of the Act.
2. Frisch's Big Boy Ill-Mar, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
3. By refusing , and by continuing to refuse , to bargain collectively
with the Union as the certified representative of its employees in
the above appropriate unit, the Respondent did engage in, and is
engaging in, unfair labor practices within the meaning of Section
8(a) (5) of the Act.
4. By refusing , and by continuing to refuse , to bargain collectively
with the Union as the representative of its employees in the unit
described above, Respondent did interfere with, restrain, and
coerce, and is interfering with, restraining , and coercing , its employ-
ees in the exercise of the rights guaranteed in Section 7 of the Act,
and thereby did engage in, and is engaging in, unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 8 ( a) (1) and (5),
and Section 2(6) and (7) of the Act.
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby orders
that the Respondent, Frisch's Big Boy I11-Mar, Inc., its officers,
agents, successors, and.assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively in good faith concerning
wages, rates of pay, hours, and other terms and conditions of
employment, with Hotel, Motel, Cafeteria & Restaurant Employees'
& Bartenders Union Local No. 58, AFL-CIO, affiliated with Hotel
& Restaurant Employees' and Bartenders International Union,
AFL-CIO, as the exclusive representative of its employees in the
following appropriate unit :
All regular and all regular part-time employees at the Respond-
ent's restaurant at 51 North Illinois Street, Indianapolis, Indiana,
including cashiers, exclusive of all office clerical employees, man-
agers, assistant managers, professional employees, guards, and super-
visors as defined in the Act.
(b) Interfering with the efforts of the above-named labor organi-
zation to negotiate for or represent the employees in the said
appropriate -unit as the exclusive bargaining agent.
2. Take the following affirmative action which the Board finds
will effectuate the purposes of the Act :
(a) Upon request, bargain collectively with the above-named
labor organization in the above-described appropriate unit, and
embody in a signed agreement any understanding reached with
respect to the employees in said unit.
(b) Post at its 51 North Illinois Street, Indianapolis, Indiana,
plant, copies of the attached notice marked "Appendix." 3 Copies
of said notice, to be furnished by the Regional Director for the
Region 25, shall, after being duly signed by the Respondent, be
posted by it 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 the Respondent to
insure that said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for Region 25, in writing,
within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith.
3In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order"
the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an
-Order"
FRISCH ' S BIG BOY ILL - MAR, INC. 459
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the purposes of the National
Labor Relations Act, as amended, we hereby notify our employees
that :
WE WILL NOT refuse to bargain collectively with Hotel, Motel,
Cafeteria & Restaurant Employees and Bartenders Union,
Local No. 58, AFL-CIO, as the exclusive representative of the
employees in the bargaining unit described below.
AVE WILL, upon request, bargain with Hotel, Motel , Cafeteria
& Restaurant Employees and Bartenders Union, Local No. 58,
AFL-CIO, as the exclusive representative of all the employees
in the bargaining unit described below with respect to rates
of pay, wages , hours, and other terms and conditions of employ-
ment, and, if an understanding is reached , embody such an
understanding in a signed agreement.
The bargaining unit is:
All regular and all regular part -time employees at the
Respondent 's restaurant at 51 North Illinois Street, Indi-
anapolis, Indiana, including cashiers , exclusive of all office
clerical employees, managers , and supervisors as defined in
the Act.
WE WILL NOT interfere with the efforts of Hotel , Motel,
Cafeteria & Restaurant Employees and Bartenders Union,
Local No. 58, AFL-CIO , to negotiate for or represent as
exclusive bargaining agent the employees in the bargaining
unit described above.
FRIscH's BIG BOY ILL-MAR, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date of posting , and must not be altered , defaced, or covered by any
other material.
Employees may communicate directly with the Board 's Regional
Office, 614 ISTA Center, 150 West Market Street, Indianapolis, In-
diana, Telephone No . ME 3-8921, if they have any question concern-
ing this notice or compliance with its provisions.