Howard Johnson Co.

National Labor Relations Board - Board Decisions

May 22, 1967

164 N.L.R.B. 801 (N.L.R.B. 1967)

HOWARD JOHNSON COMPANY
Howard Johnson Company and International
Union of Operating Engineers , Local 68,
AFL-CIO. Case 22-CA-2961.
May 22, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND ZAGORIA
On March 6, 1967, Trial Examiner Charles W.
Schneider issued his Decision in the above-entitled
case, finding that the Respondent had engaged in
and was engaging in certain unfair labor practices
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 Trial Examiner's Decision 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.
The Board has reviewed the rulings of the Trial
Examiner including his granting of the General
Counsel's motion for judgment on the pleadings, and
Respondent's response to the Trial Examiner's order
to show cause 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 brief, and the entire record in the
case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that Respondent, Howard Johnson
Company, Englewood, New Jersey, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
' On October 27, 1966, the Board denied the Employer's
request for review of the Regional Director's Supplemental
Decision and Order in Case 22-RC-3282 (not printed in NLRB
volumes), the underlying representation proceeding in which the
Union was certified In addition to the reasons set forth by the
Trial Examiner herein for rejecting the Respondent's argument
that in that proceeding the Regional Director acted improperly in
overruling the challenge to the ballot of Henry Kohler, which was
based on his alleged supervisory status, we note that the record
and the transcript of testimony in Case 22-RC-3282, of which we
take official notice, show that the status and duties of Kohler
were, in fact, fully litigated in that hearing. It is quite clear that
801
the Respondent presented evidence and argument with regard
thereto and that it took the vigorous position that both Kohler and
Victor Vary were rank-and-file employees who could not
constitute a separate appropriate unit and their duties required
that they be included in a single unit with all other rank-and-file
employees The testimony in that case, largely that of
Respondent's vice president and present and past plant
managers, shows clearly that Kohler and Vary work directly
under the supervision of the plant manager without intermediate
supervision, that Kohler did not possess any indicia of supervisory
status, and that his relationship to Vary was that of a senior, more
experienced employee to a junior, less experienced employee In
fact, Respondent's testimony was unequivocally to the effect that
only its plant manager had the authority to exercise any of the
supervisory functions normally considered in determining such
status . Furthermore, the Respondent has not at any time asserted
any additional facts which would justify the conclusion that
Kohler is a supervisor
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The Representation Proceeding
CHARLES W. SCHNEIDER, Trial Examiner: A petition
was filed by International Operating Engineers Union,
Local 68, AFL-CIO, herein called Local 68, on April 29,
1966,' in Case 22-RC-3282 for an election among all boiler
and compressor room operating engineers employed at
Respondent Howard Johnson's Englewood, New Jersey,
plant.2 A hearing was held thereon at which Local 68
contended that the two boiler and compressor room
operating engineers comprised a unit appropriate for
collective bargaining within the meaning of Section 9(b) of
the Act, while Respondent asserted that its operations at
the plant are so integrated as to require a finding that the
only appropriate unit must consist of all production and
maintenance employees. On June 9, a Decision and
Direction of Election was issued by the Regional Director
for Region 22 in which he found that the unit sought by
Local 68 was appropriate and an election was directed
accordingly. On June 17, counsel for Respondent filed
with the Board a Request for Review of the Decision and
Direction of Election. This was denied by the Board on
July 1, on the ground that the request "raises no
substantial issues warranting review."
On July 6, an election by secret ballot was conducted
under the direction and supervision of the Regional
Director for Region 22 among the employees ;n the unit
found appropriate for the purposes of collective
bargaining. Respondent thereupon challenged the two
ballots cast, raising for the first time the objections that
one of the individuals who voted, Henry Kohler, was a
supervisor, and that another employee who voted, Victor
Vary, was not in the unit and was not properly licensed to
maintain the boilers at the Englewood, New Jersey, plant.
The Regional Director, in a Supplemental Decision and
Order dated August 1 overruled the challenges on the
ground that the Respondent had an opportunity to make
these arguments at the hearing or in its request for review
but failed to do so. On August 9, counsel for Respondent
filed a request for review of the Supplemental Decision
and Order. This request was denied by the Board on
Dates are for 1966 unless otherwise specified
z Official notice is taken of the representation proceeding,
Howard Johnson Company, Case 22-RC-3282.
164 NLRB No. 121
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
October 27, 1966, as presenting "no substantial issues
warranting review." The challenged ballots were opened
and counted; the revised tally of ballots having shown that
both employees had voted to be represented by Local 68, a
certification of representative was issued to Local 68 on
November 10, 1966.
The Complaint Case
On December 7, International Union of Operating
Engineers , Local 68-68A, filed the unfair labor practice
charge involved in the instant case in which it alleged that,
since on or about November 22, the Respondent has
refused to bargain with Local 68.
On December 21, the General Counsel, by the Regional
Director for Region 22, issued the instant complaint
alleging that the Respondent had committed unfair labor
practices in violation of Section 8(a)(1) and (5) of the Act by
refusing to bargain with Local 68 upon request.
In its answer filed on January 5, 1967, the Respondent
admitted the filing and service of the charge, that Local 68
is a labor organization within the meaning of the Act, and
the jurisdictional allegations of the complaint; but denied
the appropriateness of the unit, that Local 68 was the
certified exclusive collective-bargaining representative of
the employees, that Local 68 requested to bargain
collectively since on or about November 22, that the
Respondent has refused to bargain collectively with
Local 68 as the exclusive collective-bargaining
representative of the employees in the unit found to be
appropriate, and denied the commission of any unfair
labor practices within the meaning of Section 8(a)(1) and
(5) of the Act.
On January 20, 1967, counsel for the General Counsel
filed a motion for summary judgment accompanied by a
memorandum in support thereof with affidavit attached,
contending that there is no genuine issue as to any
material fact, and that therefore there is no necessity for a
hearing.
On January 24, 1967, Trial Examiner Charles W.
Schneider issued an order to show cause on motion for
summary judgment. The parties were directed to show
cause on or before February 8, 1967, subsequently
extended to February 13, as to whether the motion for
summary judgment should be granted.
On February 10, 1967, the Respondent filed a motion to
amend answer to complaint, which I deem an amendment
to the answer.3 Apart from argument in the motion, the
effect of the amendment is to admit that Local 68
requested the Respondent to bargain after the certification
and that the Respondent refused.
On February 13, 1967, the Respondent filed its response
and memorandum brief to the General Counsel's motion
for summary judgment. On February 20, 1967, counsel for
the General Counsel filed a supplemental memorandum in
support of the motion for summary judgment. This
supplemental memorandum is rejected as not being a
timely response to the order to show cause.
Ruling on the Motion for Summary Judgment
In the amended answer and memorandum brief,
Respondent avers that one of the two votes cast in the
July 6 election was that of a supervisor, and that a majority
of employees within the meaning of Section 2(3) have not
designated or selected a representative; that the Board
has ignored the mandate of Section 9(b) to resolve the
dispute as to employee status and, without investigation
though the issue was timely raised, has allowed the
participation in a Board election of a supervisor in
violation of Sections 9(a) and 14(a) of the Act, thus
operating to deny Respondent due process rights.
Respondent thus defends its refusal to bargain with
Local 68 as due to the inappropriateness of the unit
designated by the Regional Director and because Local 68
had not been designated by a majority of employees.
In the light of the admissions in the pleadings, and the
prior rulings of the Board in the representation case, it is
clear that the Respondent seeks to litigate in this unfair
labor practice proceeding issues which have already been
decided by the Board in the prior related representation
case. It is established Board policy in a complaint case, in
the absence of newly discovered or previously unavailable
evidence , not to permit litigation of issues which were or
could have been litigated in a prior related representation
proceeding.4
This policy is applicable even though a formal hearing
on objections to an election has not been provided by the
Board. Such hearing is not a matter of right and a request
for one is not granted unless substantial and material
issues of fact are raised.5
The Respondent's election challenges were rejected by
the Regional Director as an untimely raising, without
proffered excuse, of arguments reasonably available at the
time of the representation hearing, an action which the
Board refused to review, and thus by operation of the
Rules and Regulations affirmed.
The Trial Examiner has no authority to reexamine those
dispositions or to question the Board 's conclusions made
on the existing record. There is no offer of previously
unavailable or hitherto undiscovered evidence. The
decisions of the Board in the matter therefore constitute,
at this stage of the proceedings, the law of the case.
Krieger-Ragsdale & Company, Inc., 159 NLRB 490; The
Puritan Sportswear Corp., 159 NLRB 490; The Puritan
Sportswear Corp., 162 NLRB 13.
It follows that there are no factual issues litigable before
a Trial Examiner and therefore no matter warranting
hearing. Accordingly, the General Counsel's motion for
summary judgment is granted, and I hereby make the
following further:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
(a) The Respondent is, and has been at all times
material herein , a corporation duly organized under, and
existing by virtue of, the laws of the State of Maryland.
3 Respondent may amend its answer as a matter of right at any
time prior to hearing Section 102 23 of the National Labor
Relations Board Rules and Regulations , Series 8, as amended,
revised January 1, 1965
J Pittsburgh Plate Glass Company v N L R B, 313 U S 146,
162 And see Board's Rules, supra, 102 67(f)
"Denial of a request for review [of a decision by a Regional
Director in a representation case] shall constitute an
affirmance of the Regional Director's action which shall also
preclude relitigating any such issues in any related
subsequent unfair labor practice proceeding
See also 102 69(c)
s O K Van and Storage, Inc , 127 NLRB 1537
HOWARD JOHNSON COMPANY
(b) At all times material herein Respondent has
maintained its principal office and place of business in the
State of Maryland and has maintained various other places
of business in the States of New York and New Jersey,
including an ice cream manufacturing plant at 400 South
Dean Street , Englewood , New Jersey , herein called the
Englewood plant , and is now , and at all times material
herein has been , continuously engaged at said Englewood
plant in the manufacture , warehousing , and distribution of
ice cream and related products . Respondent 's Englewood
plant is its only facility involved in this proceeding.
(c) In the course and conduct of Respondent 's business
operations during the preceding 12 months, said
operations being representative of its operations at all
times material herein, Respondent caused to be
manufactured and distributed at said Englewood plant,
products valued in excess of $50,000 , of which products
valued in excess of $50,000 were shipped from said
Englewood plant in interstate commerce directly to States
of the United States other than the State of New Jersey.
(d) 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.
II. THE LABOR ORGANIZATION INVOLVED
International Union of Operating Engineers , Local 68,
AFL-CIO, is, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
All boiler and compressor room operating engineers
employed at Respondent 's Englewood, New Jersey , plant,
excluding office clerical employees , professional
employees , all other 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. On July 6 , 1966 , a majority of the
employees of the Respondent in the appropriate unit, by a
secret -ballot election conducted under the supervision of
the Regional Director for Region 22 of the Board,
designated and selected Local 68 as their exclusive
representative for the purposes of collective bargaining
with Respondent , and on or about November 10, 1966, said
Regional Director certified that Local 68 was the exclusive
collective -bargaining representative of the employees in
the said unit.
Under date of November 22, 1966 , Local 68 requested
the Respondent to bargain , and the Respondent declined
to do so.
6 In the event that this Recommended Order is adopted by the
Board , the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals , the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
803
By thus refusing to recognize and bargain with the
Union, the Respondent has refused to bargain collectively
in violation of Section 8(a)(5) of the Act and has interfered
with, restrained , and coerced its employees in violation of
Section 8(a)(1) of the Act. The aforesaid unfair labor
practices affect commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in the case, and pursuant to Section
10(c) of the Act, I recommend that the Board issue the
following:
ORDER
Howard Johnson Company, Englewood , New Jersey, its
officers , agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with International
Operating Engineers Union, Local 68, AFL-CIO, as the
exclusive collective -bargaining representative in the
following appropriate bargaining unit : All boiler and
compressor room operating engineers employed at
Respondent 's Englewood , New Jersey, plant , excluding
office clerical employees , professional employees, all
other employees , guards, and supervisors as defined in the
Act.
(b) Interfering with the efforts of said Union to negotiate
for or represent the employees in said appropriate unit as
the exclusive collective - bargaining representative.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request , bargain collectively with
International Operating Engineers Union, Local68,
AFL-CIO , as the exclusive representative of the
employees in the appropriate unit with respect to rates of
pay, wages, hours of work , and other terms and conditions
of employment , and embody in a signed agreement any
understanding reached.
(b) Post at its Englewood , New Jersey, plant , copies of
the attached notice marked "Appendix." 6 Copies of said
notice, on forms to be furnished by the Regional Director
for Region 22, shall, after being duly signed by an
authorized representative of the Respondent , be posted by
the 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 the Respondent to insure that said notices are
not altered , defaced , or covered by any other material.
(c) Notify the Regional Director for Region 22, in
writing, within 20 days from the receipt of this Decision,
what steps it has taken to comply herewith.'
' In the event that this Recommended Order is adopted by the
Board , this provision shall be modified to read "Notify the
Regional Director for Region 22, in writing, within 10 days from
the date of this Order , what steps Respondent has taken to
comply herewith "
298-668 0-69-52
804 DECISIONS OF NATIONAL
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner 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
International Operating Engineers Union , Local 68,
AFL-CIO, as the exclusive bargaining representative
of all the following employees:
All boiler and compressor room operating
engineers employed at our Englewood, New
Jersey, plant , excluding office clerical
employees , professional employees, all other
employees , guards, and supervisors as defined in
the Act.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce employees in the
exercise of their rights under the Act.
LABOR RELATIONS BOARD
WE WILL bargain collectively with the Union as the
exclusive representative of these employees , and, if
an understanding is reached , sign a contract with the
Union.
HOWARD JOHNSON
COMPANY
(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 compliance with its provisions , they may communicate
directly with the Board's Regional Office, 614 National
Newark Building, 744 Broad Street, Newark, New Jersey
07102, Telephone 645-3088.