Lone Star Steakhouse & Saloon

National Labor Relations Board - Board Decisions

Mar 13, 2000

330 N.L.R.B. 129 (N.L.R.B. 2000)

330 NLRB No. 129
NOTICE: This opinion is subject to formal revision before publication in the
Board volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Lone Star Steakhouse and Saloon of New Jersey, Inc.
and Local 54, Hotel Employees and Restaurant
Employees International Union, AFL–CIO.
Case 4–CA–28725
March 13, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX AND
BRAME
Pursuant to a charge filed on November 1, 1999, the
General Counsel of the National Labor Relations Board
issued a complaint on November 12, 1999, alleging that
the Respondent has violated Section 8(a)(5) and (1) of
the National Labor Relations Act by refusing the Union’s
request to bargain following the Union’s certification in
Case 4–RC–19665. (Official notice is taken of the “re-
cord” in the representation proceeding as defined in the
Board’s Rules and Regulations, Secs. 102.68 and
102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The
Respondent filed an answer admitting in part and deny-
ing in part the allegations in the complaint.
On December 13, 1999, the Ge neral Counsel filed a
Motion for Summary Judgment. On December 16, 1999,
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 Respondent filed a response.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
In its answer the Respondent admits its refusal to bar-
gain, but attacks the validity of the certification on the
basis of its objections to the election and the Board’s unit
determination in the representation proceeding. Specifi-
cally, the Respondent reiterates its contentions, raised
and rejected in the underlying representation case, that
the certified unit consisting of kitchen employees is in-
appropriate because only a wall-to-wall unit of all the
nonsupervisory employees in the Respondent’s restau-
rant is appropriate, and that the Union engaged in alleg-
edly improper electioneering in the polling area.
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding. The Respondent does not offer to ad-
duce at a hearing any newly discovered and previously
unavailable evidence, nor does it allege any special cir-
cumstances that would require the Board to reexamine
the decision made in the representation proceeding. We
therefore find that the Respondent has not raised any
representation issue that is properly litigable in this un-
fair labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord-
ingly, we grant the Motion for Summary Judgment.1
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a New Jersey
corporation, has been engaged in the operation of a res-
taurant at 3117 Fire Road, Egg Harbor Township, New
Jersey. During the 12-month period immediately preced-
ing issuance of the complaint, the Respondent, in con-
ducting its business operations described above, derived
gross revenues in excess of $500,000, and purchased and
received at its restaurant goods valued in excess of $5000
directly from points outside the State of New Jersey. We
find that the Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6) and
(7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held June 23, 1999, the Union
was certified on September 8, 1999, as the exclusive col-
lective-bargaining representative of the employees in the
following appropriate unit:

All full-time and regular part-time line cooks, prep
cooks, cooks, dishwashers, pot washers, sautè cooks,
prep persons, and back of the house key employees
employed by Respondent at the Restaurant, excluding
bartenders, hosts, hostesses, servers, guards, and super-
visors as defined in the Act.

The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
Since about September 29, 1999, the Union has re-
quested the Respondent to bargain, and since about Sep-
tember 29, 1999, the Respondent 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 September 29, 1999, to bar-
gain with the Union as the exclusive collective-
bargaining representative of employees in the appropriate
unit, the Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Act.

1 Member Brame did not participate in that portion of the representa-
tion proceeding involving the Board’s unit determination. He agrees,
however, that the Respondent has not raised any new matters on that
issue that would require the Board to reexamine its decision in the
representation proceeding. Accordingly, he joins his colleagues in
granting the Motion for Summary Judgment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2
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 the law, we shall construe the initial period of the cer-
tification 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, Lone Star Steakhouse and Saloon of New
Jersey, Inc., Egg Harbor Township, New Jersey, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Local 54, Hotel Employ-
ees and Restaurant Employees International Union,
AFL–CIO, as the exclusive bargaining representative of
the employees in the bargaining unit.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive representative of the employees in the following
appropriate unit on terms and conditions of employment,
and if an understanding is reached, embody the under-
standing in a signed agreement:

All full-time and regular part-time line cooks, prep
cooks, cooks, dishwashers, pot washers, sautè cooks,
prep persons, and back of the house key employees
employed by Respondent at the Restaurant, excluding
bartenders, hosts, hostesses, servers, guards, and super-
visors as defined in the Act.

(b) Within 14 days after service by the Region, post at
its facility in Egg Harbor Township, New Jersey, copies
of the attached notice marked “Appendix.”2 Copies of
the notice, on forms provided by the Regional Director
for Region 4 after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respon-
dent and maintained for 60 consecutive days in con-

2 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
spicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since September 29, 1999.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. March 13, 2000

John C. Truesdale, Chairman

Sarah M. Fox, Member

J. Robert Brame III, Member

(SEAL) NATIONAL 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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT refuse to bargain with Local 54, Hotel
Employees and Restaurant Employees International Un-
ion, 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 exercise 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 bar-
gaining unit:

LONE STAR STEAKHOUSE & SALOON OF NEW JERSEY 3
All full-time and regular part-time line cooks, prep
cooks, cooks, dishwashers, pot washers, sautè cooks,
prep persons, and back of the house key employees
employed by us at the Restaurant, excluding bartend-
ers, hosts, hostesses, servers, guards, and supervisors as
defined in the Act.

LONE STAR STEAKHOUSE AND SALOON
OF NEW JERSEY, INC.