The Horn & Hardart Co.

National Labor Relations Board - Board Decisions

May 23, 1969

176 N.L.R.B. 146 (N.L.R.B. 1969)

146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Horn & Hard art Company and Restaurant
Cashiers Association . Case 2-CA-11726
May 23, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
Upon a charge filed by the Restaurant Cashiers
Association, herein called the Union, the General
Counsel for the National Labor Relations Board, by
the Regional Director for Region 2, issued a
complaint dated February 27, 1969, against The
Horn & Hardart Company, herein called
Respondent, alleging that the Respondent did
engage in and is eng aging in unfair labor practices
within the meaning of Section 8(aX5) 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 were duly served
upon Respondent.
With respect to the unfair labor practices, the
complaint alleges in substance, that on January 3,
1969, a majority of the employees in a voting group
found appropriate by the Board,' in a secret ballot
election conducted under the supervision of the
Regional Director for Region 2 of the National
Labor Relations Board designated and selected the
Union as their representative for the purpose of
collective bargaining , and on January 13, 1969, the
Union was certified. The complaint further alleges
that on January 14, 1969, the Respondent refused
and since said date has continued to refuse, to
recognize the Union or to engage in collective
bargaining with it as such exclusive
collective -bargaining representative although the
Union has requested it to do so. On March 5, 1969,
the Respondent filed its answer, admitting in part,
and denying in part the allegations of the complaint,
and requesting that the complaint be dismissed.
Thereafter, the General Counsel filed with the
Regional Director a Motion for Summary Judgment
and a petition in support of his motion asserting
that, as the denials and additional statements set
forth in Respondent's Answer raise no issues which
have not been litigated and determined by the Board
in Case 2-RC-14888, there are no issues requiring a
hearing , and praying the issuance of a Decision and
Order finding the violations as alleged in the
complaint. On April 7, 1969, 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 . On April 9, 1969, Respondent filed
Respondent's Motion to Dismiss Motion for
Summary Judgment or in the Alternative to
'Decision and Direction of Election issued December 3, 1968, 173 NLRB
No. 164.
Transfer It to the Trial Examiner's Division.
Thereafter, on April 17, 1969, the Respondent filed
its Answer to General Counsel's Motion for
Summary Judgment incorporating by reference its
April 9, 1969, motion. On April 18, 1969, the Union
filed its Statement of Charging Party in Support of
the Motion for Summary Judgment, and in
Opposition to Respondent Motion for Alternative
Relief.
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.
Upon the entire record in this case, the Board
makes the following:
Ruling on the Motion for Summary Judgment
The record before us establishes that on April 16,
1968, the Union filed a petition in Case 2-RC-14888
seeking to represent all cashiers employed by the
Respondent. On December 3, 1968, the Board, after
a hearing issued a Decision and Direction of
Election wherein the Board directed an election
among the following unit of employees:
All unrepresented employees including head
cashiers, relief head cashiers, assistant cashiers,
relief assistant cashiers, and PM cashiers,
employed by Employer in its automat-cafeterias,
located in Manhattan, Queens, Long Island
(Garden City), Brooklyn, Westchester County
(Cross County Center and White Plains) and New
Jersey (Paramus) excluding all represented
employees, office employees, retail store
employees not employed in automat-cafeterias or
service restaurants, employees engaged in
industrial feeding, maintenance employees, special
officers, watchmen, guards, pensioners, executives
and supervisors.
On January 3, 1969, pursuant to the Decision and
Direction of Election, an election was held in which
the eligible voters were given a choice of voting for
Cafeteria Employees Union, Local 302 (herein
called Local 302), the Union, or neither. A majority
of the eligible voters cast ballots for the Union as
the exclusive collective-bargaining representative in
the unit described above.
On February 10, 1969, Respondent filed with the
Board Employer's Motion to Reopen and
Reconsider in Case 2-RC-14888. On February 27,
1969, the Board denied Employer's Motion to
Reopen and Reconsider as it contained nothing not
previously considered by the Board.
On February 24, 1969, Local 302 filed with the
Board Intervenor's Motion for Reconsideration
and/or Clarification in Case 2-RC-14888. On
March 27, 1969, the Board denied Intervenor's
motion for reconsideration as it contained nothing
not previously considered by the Board, and denied
Intervenor's motion for clarification as it failed to
disclose with the specificity required by Section
176 NLRB No. 20
THE HORN & HARDART CO.
102.61 (d) of the Board's Rules and Regulations,
Series 8, as amended, sufficient grounds for granting
such a motion.
On January 6, 1969, the Union requested
Respondent to bargain collectively. This request was
refused on or about January 14, 1969. On January
17, 1969, the Union filed the charge upon which the
complaint was predicated.
In its Answer to General Counsel's Motion for
Summary Judgment, Respondent contends in
substance: (1) that it has newly discovered evidence
not presented at the hearing in Case 2-RC-14888
that Local 302's President, Joseph Fox, would
testify that certain matters relating to past
representation elections were presented to the
arbitrator whose award the Board declined to defer
to; (2) that since the Board's Decision in Case
2-RC-14888, Local 302 has advised Respondent that
it can no longer permit interchange between
employees in the two different units and that
elimination of this interchange will result in
Respondent being required to employ 16 additional
employees at a substantial cost; (3) that the Board
should have deferred to the arbitrator's award in
Case 2-RC-14888; and (4) that the special
circumstances of this case justify the introduction of
evidence in this proceeding.
Respondent's contentions seek to relitigate
contentions made prior to and rejected in the
Board's Decision in Case 2-RC-148882 and in the
Board's denial of Respondent's motion for
reconsideration of that decision. Inasmuch as
Re spondent has already litigated such contentions, it
has not raised any issue which is properly triable in
this proceeding.'
As all material issues have been previously
decided by the Board, or admitted by Respondent's
answer to the complaint, there are no matters
requiring a hearing before a Trial Examiner.
Accordingly, the General Counsel's Motion for
Summary Judgment is granted. On the basis of the
record before it, the Board makes the following:
'Respondent was a party to an active participant in the arbitration
hearing . It was aware of what transpired in that proceeding . Therefore, any
evidence relating to what occurred in that proceeding does not meet the
definition of newly discovered evidence . In addition , we note that Local
302 intervened and actively participated in the hearing in Case 2-RC-14888
and Fox testified during that hearing.
'E-Z Davis Chevrolet , 161 NLRB 1380. Respondent , in its motion to
dismiss the Motion for Summary Judgment , or in the alternative to
transfer it to the Trial Examiner 's Division , contends that the Board 's rules
require that all pretrial motions be transfered to the Trial Examiner's
Division, and that it is entitled to a hearing before a Trial Examiner and
the opportunity to present facts and evidence in support of its position.
The Board has the power to entertain and grant motions for summary
judgment without first referring the motion to the Trial Examiner's
Division . E-Z Davis Chevrolet , supra. Respondent 's remaining contentions
have been disposed of above . Accordingly , we also deny this motion.
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
147
Respondent is and has been at all time material
herein, a New York corporation engaged in
maintaining and operating cafeterias,
automat-cafeterias, and waitress service restaurants
at various locations in the States of New York and
New Jersey. During the past year, which period is
representative of its annual operations generally,
Respondent, in the course and conduct of its
business , derived revenues from the retail sale of
food in excess of $500,000, and in the same period it
purchased items of food, goods, and materials
valued in excess of $50,000, which items it caused to
be transported and delivered to its various business
locations in interstate commerce directly from
States of the United States other than the State to
which they were transported and delivered.
Respondent admits, and we find, 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.
II. THE LABOR ORGANIZATION INVOLVED
The Restaurant Cashiers Association 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 constitute a unit
appropriate for collective- bargaining purposes within
the meaning of Section 9(b) of the Act:
All unrepresented employees including head
cashiers, relief head cashiers, assistant cashiers,
relief assistant cashiers, and PM cashiers,
employed by Employer in its automat-cafeterias,
waitress-service restaurants, and cafeterias, which
are located in Manhattan, Queens, Long Island
(Garden City), Brooklyn, Westchester County
(Cross County Center and White Plains) and New
Jersey (Paramus) excluding all represented
employees, office employees, retail store
employees not employed in automat-cafeterias or
service restaurants, employees engaged in
industrial feeding, maintenance employees, special
officers, watchmen, guards, pensioners, executives
and supervisors.
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The certification
On January 3, 1969, 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 2, designated the
Union as their representative for the purposes of
collective bargaining with Respondent, and on
January 13, 1969, the Union was certified as the
collective- bargaining representative of the employees
in said unit and continues to be such representative.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about January 6, 1969, and
continuing to date the Union has requested and is
requesting Respondent to bargain collectively with
the Union as the exclusive collective-bargaining
representative of the employees in the
above-described unit. Since January 14, 1969, and
continuing to date, Respondent has refused and
continues to refuse to bargain collectively with the
Union as exclusive collective-bargaining
representative of all 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 Respondent in
the appropriate unit described above and that the
Union at all times since January 13, 1969, has been
and now is the exclusive bargaining representative of
all the employees in the aforesaid unit, within the
meaning of Section 9(a) of the Act. We further find
that Respondent has since January 14, 1969, refused
to bargain collectively with the Union as the
exclusive bargaining representative of its employees
in the appropriate unit. By such refusal Respondent
has engaged in and is engaging in unfair labor
practices within the meaning of Sections 8(a)(5) and
(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The acts of Respondent set forth in section III
above, occurring 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 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.
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 year of
certification as beginning on the date the
Respondent commences to bargain in good faith
with the Union as the recognized bargaining
representative in the appropriate unit. See Mar-Jac
Poultry Company Inc., 136 NLRB 785; Commerce
Company d/b/a Lamar Hotel, 140 NLRB 226, 229,
enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S.
817; Burnett Construction Company, 149 NLRB
1419, 1421, enfd. 350 F.2d 57 (C.A. 10).
Conclusions of Law
1. The Horn & Hardart Company, is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Restaurant Cashiers Association is a labor
organization within the meaning of Section 2(5) of
the Act.
3. The following unit is an appropriate unit for
the purposes of collective bargaining within the
meaning of Section 9(a) of the Act:
All unrepresented employees including head
cashiers, relief head cashiers, assistant cashiers,
relief assistant cashiers, and PM cashiers
employed by Employer in its automat-cafeterias,
waitress-service restaurants, and cafeterias, which
are located in Manhattan, Queens, Long Island
(Garden City), Brooklyn, Westchester County
(Cross County Center and White Plains ) and New
Jersey (Paramus) excluding all represented
employees, office employees, retail store
employees not employed in automat-cafeterias or
service restaurants, employees engaged in
industrial feeding, maintenance employees, special
officers, watchmen, guards, pensioners, executives
and supervisors.
4. Since January 13, 1969, the Union has been the
exclusive representative of all employees in the
aforesaid appropriate unit for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
5. By refusing on or about January 14, 1969, and
at all times thereafter, to bargain collectively with
the Union as the exclusive bargaining representative
of all the employees in the appropriate unit,
Respondent 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, Respondent
has interfered with, 'restrained, and coerced, and is
interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
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.
THE HORN & HARDART CO. 149
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 Respondent,
The Horn & Hardart Company, New York, New
York, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
wages, hours, and other terms and conditions of
employment, with the Restaurant Cashiers
Association as the exclusive bargaining
representative of its employees in the following
appropriate unit:
All unrepresented employees, including head
cashiers, relief head cashiers, assistant cashiers,
relief assistant cashiers, and PM cashiers,
employed by Employer in its automat-cafeterias,
waitress-service restaurants, and cafeterias, which
are located in Manhattan, Queens, Long Island
(Garden City), Brooklyn, Westchester County
(Cross County Center and White Plains) and New
Jersey (Paramus) excluding all represented
employees, office employees, retail store
employees not employed in automat-cafeterias or
service restaurants, employees engaged in
industrial feeding, maintenance employees, special
officers, watchmen, guards, pensioners, executives
and supervisors.
(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 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
understanding is reached, embody such
understanding in a signed agreement.
(b) Post at each of its cafeterias,
automat-cafeterias, and waitress service restaurants
in Manhattan, Queens, Long Island (Garden City),
Brooklyn, Westchester County (Cross County
Center and White Plains) and New Jersey
(Paramus), copies of the attached notice marked
"Appendix."' Copies of said notice, on forms
provided by the Regional Director for Region 2,
shall, after being duly signed by Respondent's
representative, be posted by 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 Respondent to
insure that said Notices are not altered, defaced, or
covered by any other material.
(c) Notify said Regional Director for Region 2, in
writing, within 10 days from the date of this
Decision and Order, what steps Respondent has
taken to comply herewith.
'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 "the Decision
and Order" the words "a Decree of the United States Court of Appeals
Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the 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 the
Restaurant Cashiers Association 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 representative of
all our 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 agreement.
The bargaining unit is:
All unrepresented employees including head cashiers,
relief head cashiers, assistant cashiers, relief assistant
cashiers, and PM cashiers, employed by Employer in its
automat-cafeterias, waitress-service restaurants, and
cafeterias, which are located in Manhattan, Queens,
Long Island (Garden City), Brooklyn, Westchester
County (Cross County Center and White Plains) and
New Jersey, (Paramus) excluding all represented
employees, office employees, retail store employees not
employed in automat-cafeterias, or service restaurants,
employees engaged in industrial feeding, maintenance
employees, special officers, watchmen, guards,
pensioners, executives and supervisors.
THE HORN & HARDART
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, 36th Floor
Federal Building, 26 Federal Plaza, New York, New York
10007, Telephone 212-264-0300.