Herbert Harvey, Inc.

National Labor Relations Board - Board Decisions

Jan 12, 1967

162 N.L.R.B. 890 (N.L.R.B. 1967)

890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practice on the part of the Employer. In making this determination,
we rely primarily upon the language contained in the ITU's and
Pressmen's contracts with the Employer. Similar contractual lan-
guage was interpreted in Bell Press, Inc., supra, where the disputed
work was assigned to the Pressmen. We therefore assign camera
work in the Employer's offset platemaking department, which work
includes platemaking, camera operation, darkroom work, stripping,
opaquing, and burning, to those employees represented by the Press-
men, but not to that Union or its members. This determination is lim-
ited to the particular controversy giving rise to this dispute.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the Act and upon the basis of the
foregoing findings and the entire record in this proceeding, the
National Labor Relations Board makes the following Determination
of the Dispute :
Employees, who are represented by International Printing Press-
men and Assistants' Union of North America, AFL-CIO, and Cin-
cinnati Printing Pressmen and Assistants' Union Local No. 11, Inter-
national Printing Pressmen and Assistants' Union of North America,
AFL-CIAO, are entitled to perform the camera work in the Employ-
er's offset platemaking department, which includes platemaking,
camera operation, darkroom work, stripping, opaquing, and burning.
Herbert Harvey, Inc. and Government Service Employees ' Union,
Local 536, Building Service Employees ' International Union,
AFL-CIO. Case 5-CA-3583. January 12, 1967
DECISION AND ORDER
Upon a charge filed by Government Service Employees' Union,
Local 536, Building Service Employees' International Union, AFL-
CIO, the General Counsel for the National Labor Relations Board,
by the Regional Director for Region 5, issued a complaint dated Au-
gust 30, 1966, against Herbert Harvey, Inc., herein called the Re-
spondent, alleging that the Respondent had engaged in and was
engaging in unfair labor practices within the meaning of Sections
8 (a) (5) and (1) and 2 (6) and (7) of the National Labor Relations
Act, as amended. Copies of the charge, complaint, and notice of hear-
ing were duly served upon the Respondent and the Union.
With respect to the unfair labor practices, the complaint alleges, in
substance, that on or about August 15, 1966, the Union was duly cer-
162 NLRB No. 83.
HERBERT HARVEY, INC. 891
tified by the Board as the exclusive bargaining representative of
Respondent's employees in the unit found appropriate by the Board
and that, since on or about August 16, 1966, Respondent has refused
to bargain with the Union as such exclusive bargaining representa-
tive, although the Union has requested it to do so. On September 8,
1966, Respondent filed its answer, admitting in part, and denying in
part, the allegations of the complaint, and requesting that the com-
plaint be dismissed.
On or about September 21, 1966, the General Counsel filed with
the Board a Motion for Summary Judgment, requesting, in view of
the admissions contained in the Respondent's answer, and the Board's
findings in the representation case,' that the allegations of the com-
plaint be found to be true and that the Board make -findings of fact
and conclusions of law in conformity with the allegations of the com-
-plaint. On September 23, 1966, the Board issued an Order Trans-
ferring Proceeding to the Board and a Notice to Show Cause. On
October 21, 1966, Respondent filed a Response to the Notice to Show
Cause requesting that the General Counsel's Motion for Summary
Judgment be denied and that the complaint herein be dismissed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Jenkins and
Zagoria].
Upon the entire record in this case, the Board makes the following :
Ruling on the Motion for Summary Judgment
On January 18, 1966, the Union filed a petition for an election in
the unit hereinafter defined. On March 1, 1966, a hearing was held
before Hearing Officer William I. Shooer and on March 10, 1966,
the Acting Regional Director for Region 5 issued an Order Trans-
ferring Representation Case to the National Labor Relations Board.
On June 13, 1966, the Board issued a Decision and Direction of Elec-
tion in which it found, contrary to the primary contention of the
Respondent, that the Respondent's operations were not so intimately
connected with the purposes and operations of the World Bank as to
warrant the withholding of the exercise of the Board's jurisdiction
over the Respondent's operations. The Board therefore directed that
an election be held in the bargaining unit described below. There-
after, the Respondent filed a motion for reconsideration which the
Board dismissed as lacking in merit.
On August 5, 1966, following an election among the Respondent's
employees in the appropriate unit, •a majority designated the Union
3 159 NLRB 254.
'892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as their representative for the purposes of collective bargaining. On
August 15, 1966, the Board certified the Union as the representative
of the employees in the appropriate unit.' On August 16, 1966, the
Respondent, by letter, informed the Union that it would not engage in
collective bargaining in order to obtain judicial review of the Board's
decision asserting jurisdiction over the Respondent's operations.
In the absence of newly discovered or previously unavailable evi-
dence, a respondent is not entitled to relitigate in an unfair labor
proceeding issues which were or could have been raised in a related
representation proceeding.3 The issues which Respondent seeks to
have the Board reexamine in the instant proceeding are identical to
those which the Board considered and disposed of in the representa-
tion proceeding. There is no allegation that special circumstances
exist herein which require the Board to reexamine the determination
which it made in the representation proceeding. Inasmuch as the
Respondent has already fully litigated these issues in the representa-
tion case, we thus find that it has not here raised any issue which is
properly triable in this unfair labor practice proceeding.
All material issues thus having been either decided by the Board
or admitted in the answer to the complaint, there are no matters
requiring a hearing before a Trial Examiner. Accordingly, the Gen-
eral Counsel's Motion for Summary Judgment is granted. On the
basis of the record before it, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent *is, and at all times material herein has been, a Dela-
ware corporation having its main office located in the District of
Columbia where it is engaged in the management and operation of
office and apartment buildings and general real estate, including the
management of the operation and maintenance functions of the Inter-
national Bank for Reconstruction and Development, located at a
complex of buildings whose addresses are 1818 II Street NW.; 1800
H Street NW.; and 718 18th Street NW., Washington, D.C. In the
course and conduct of its business operations Respondent, during the
preceding 12 months' period, a representative period, derived gross
revenues valued in excess of $100,000 and purchased goods and
materials valued in excess of $25,000 from suppliers located within
the District of Columbia.
2 The Board Issued a Corrected Certification of Representative on August 16, 1966
8 Pittsburgh Plate Glass Co. v. N.L.R B., 313 U.S. 146; Collins & Axkman Corporation,
180 NLRB 1750; United States Rubber Company, 155 NLRB 1298.
HERBERT HARVEY, INC.
H. THE LABOR ORGANIZATION INVOLVED
893
Government Service Employees' Union, Local 536, Building Serv-
ice Employees International Union, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(6) and (7) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The representation proceeding
1. The unit
At all times material herein the following employees have consti-
tuted and now constitute a unit appropriate for collective bargain-
ing within the meaning of the Act :
All charwomen, porters, and elevator operators of the Respond-
ent located at the complex of buildings owned by the Inter-
national Bank for Reconstruction and Development, 1818 H
Street NNIV., 1800 H Street NW., and 718 18th Street NW.,
Washington , D.C., but excluding carpet layers , engineers, cafe-
teria employees , dining room employees , office clerical employ-
ees, guards, and supervisors as defined in the Act.
2. The certification
On or about August 5, 1966 , a majority of the employees of
Respondent in said unit , voting in a secret election conducted under
the supervision of the Regional Director for Region 5, designated
the Union as their representative for the purpose of collective bar-
gaining with Respondent, and on August 15, 1966, the Board certified
the Union as the collective-bargaining representative of the employ-
ees in said unit, and the Union continues to be such representative.
B. The request to bargain and the Respondent 's refusal
On or about August 15, 1966, the Union requested and is con-
tinuing to request Respondent to bargain collectively with it as the
exclusive collective -bargaining representative of all the employees in
the above -described unit. Commencing on or about August 16, 1966,
Respondent did refuse , and continues to refuse , to bargain collec-
tively with the Union as exclusive collective -bargaining representa-
tive of the employees in said unit.
Accordingly, we find that the Union was duly certified by the
Board as the collective-bargaining representative of the employees
of the Respondent in the appropriate unit described above; that the
Union at all times since August 15 , 1966, has been and now is the
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exclusive bargaining representative of all the employees in the afore-
said unit, within the meaning of Section 9(a) of the Act; and that
Respondent has, since August 16, 1966, refused to bargain collec-
tively with the Union as the exclusive bargaining representative of
its employees in the appropriate unit. By such refusal, we hold, the
Respondent has engaged in, and is engaging in, unfair labor prac-
tices 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 set forth in section III, above, occur-
ring in connection with its operations as 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 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.
CONCLUSIONS OF LAW
1. Herbert Harvey, Inc., is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Government Service Employees' Union, Local 536, Building
Service Employees' International Union, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. All charwomen, porters, and elevator operators of Respondent
located at the complex of buildings owned by the International
Bank for Reconstruction and Development, 1818 H Street NW.;
1800 H Street NW.; and 718 18th Street NW., Washington, D.C.,
but excluding carpet layers, engineers, cafeteria employees, dining
room employees, 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. On August 15, 1966, and at all times thereafter, the above-
named labor organization has been and is the certified and exclusive
representative of all employees in the aforesaid appropriate unit for
the purposes of collective bargaining within the meaning of Section
9 (a) of the Act.
HERBERT HARVEY, INC. 895
5. By refusing on or about August 16, 1,966, and at all times
thereafter, to bargain collectively with the above-named labor orga-
nization as the exclusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Respondent has engaged
in, and is engaging in, unfair labor practices within the meaning of
Section 8 (a) (5) and (1) of the Act.
6. By the aforesaid refusal to bargain, Respondent has interfered
with, restrained, and coerced, and is interfering with, restraining,
and coercing, employees in the exercise of the rights guaranteed to
them in Section 7 of the Act, and has thereby engaged in, and is
engaging in, unfair labor practices within the meaning of Section
8(a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning 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, Herbert Harvey, Inc., Washington, D.C., 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
Government Service Employees' Union, Local 536, Building Service
Employees International Union, AFL-CIO, as the exclusive and
duly certified bargaining representative of its employees in the fol-
lowing appropriate unit :
All charwomen, porters, and elevator operators of Respondent
located at the complex of buildings owned by the International
Bank for Reconstruction and Development, 1818 H Street, NW.;
1800 H Street NW.; 718 18th Street NW., Washington, D.C.; but
excluding carpet layers, engineers, cafeteria employees, dining
room 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 to
them by 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 organiza-
tion as the exclusive representative of all employees in the afore-
said appropriate unit with respect to rates of pay, wages, hours, and
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other terms and conditions of employment, and, if an understanding
is reached, embody such understanding in a signed agreement.
(b) Post at those locations where notices to employees employed
at the complex of buildings owned by the International Bank for
Reconstruction and Development, 1818 H Street NW.; 1800 H Street
NW.; and 718 18th Street NW., Washington, D.C., are customarily
posted, copies of the attached notice marked "Appendix."' Copies of
said notice, to be furnished by the Regional Director for Region 5,
after being duly signed by the Company's representative, shall be
posted by the Company 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 Company to insure
that said notices are not altered, defaced, or covered by any other
material.
(c) Notify said Regional Director for Region 5, in writing,
within 10 days from the date of this Decision and Order, what steps
have been taken to comply herewith.
4 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "a Decision and Order ," the words " a Decree of
the United States Court of Appeals Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT refuse to bargain collectively with Government
Service Employees' Union Local 536, Building Service Employ-
ees' International Union AFL-CIO, as the exclusive representa-
tive 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 representative of all employees in the bargain-
ing 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 agreement. The bargaining unit is :
All charwomen, porters, and elevator operators of the Respond-
ent located at the complex of buildings owned by the Inter-
national Bank for Reconstruction and Development, 1818 H
BOB'S MARKET, INC. 897
Street NW.; 1800 H Street NW.; and 718 18th Street NW.,.
Washington, D.C., but excluding carpet layers, engineers, cafe-
teria employees, dining room employees, office clerical employ-
ees, guards, and supervisors as defined in the Act.
HERBERT HARVEY, 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.
If employees have any question concerning this notice or compli-
ance with its provisions, they may communicate directly with the
Board's Regional Office, Sixth Floor, 707 North Calvert Street,.
Baltimore, Maryland 21202, Telephone 752-8460, Extension 2159.
Bob's Market, Inc. and Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, District Union No. 271..
Case 17-CA-2857. January 13, 1967
DECISION AND ORDER
On July 21, 1966, Trial Examiner Thomas S. Wilson issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices within the meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent filed exceptions to
the Decision, a supporting brief, and an answering brief. The Gen-
eral Counsel filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, 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 Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner 's Decision, the exceptions and briefs, and the entire rec-
ord in the case, and hereby adopts the findings, conclusions, and rec-
ommendations of the Trial Examiner.
162 NLRB No. 77.
264-047-67-vol. 162-58