Thomas Lord's Restaurant

National Labor Relations Board - Board Decisions

Oct 18, 1977

233 N.L.R.B. 33 (N.L.R.B. 1977)

THOMAS LORD'S RESTAURANT
Victoria Station Incorporated d/b/a Thomas Lord's
Restaurant and Hotel and Restaurant Employees
and Bartenders Union, Local 2, Hotel and Restau-
rant Employees and Bartenders International
Union, AFL-CIO
Victoria Station Incorporated d/b/a Victoria Station
and Hotel and Restaurant Employees and Bartend-
ers Union, Local 2, Hotel and Restaurant Employ-
ees and Bartenders International Union, AFL-
CIO. Cases 20-CA-12790-1 and 20-CA-12790-2
October 18, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
Upon a charge filed on April 21, 1977, by Hotel
and Restaurant Employees and Bartenders Union,
Local 2, Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO, herein
called the Union, and duly served on Victoria Station
Incorporated, herein called the Respondent, doing
business as Thomas Lord's Restaurant and Victoria
Station, the General Counsel of the National Labor
Relations Board, by the Regional Director for
Region 20, issued a consolidated complaint on May
13, 1977, against Respondent, alleging that Respon-
dent had engaged in and was engaging in unfair
labor practices affecting commerce within the mean-
ing of Section 8(a)(5) and (1) and Section 2(6) and (7)
of the National Labor Relations Act, as amended.
Copies of the charge, consolidated complaint, and
notice of hearing before an Administrative Law
Judge were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that following Board
elections in Cases 20-RC-13532 and 20-RC-13535,
the Union, on January 4 and 5, 1977, respectively,
was duly certified as the exclusive collective-bargain-
ing representative of Respondent's employees in the
units found appropriate; 1 and that, commencing on
or about April 1, 1977, and at all times thereafter,
Respondent has refused, and continues to date to
refuse, to bargain collectively with the Union as the
exclusive bargaining representative, although the
Union has requested and is requesting it to do so. On
May 27, 1977, Respondent filed its answer to the
consolidated complaint admitting in part, and
denying in part, the allegations in the said complaint.
I Official notice is taken of the record in the representation proceeding,
Casues 20-RC-13532 and 20-RC-13535, as the term "record" is defined in
Sees. 102.68 and 10
2
.69(g) of the Board's Rules and Regulations, Series 8, as
amended. See LTV Electrosysrens, Inc., 166 NLRB 938 (1967), enfd. 388
233 NLRB No. 8
On July 12, 1977, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on July 28, 1977, 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. Respondent thereafter filed a response to
Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its response to the Notice To Show Cause, as
well as its affirmative defenses set forth in its answer
to the consolidated complaint, Respondent, in
substance, attacks the Union's certification on the
grounds that single restaurant units are inappropriate
and that the Board's finding to that effect is contrary
to precedent, arbitrary, capricious, and an abuse of
discretion. It also attacks the Union's certification on
the basis of its objections to the elections. Respon-
dent requests that the Motion for Summary Judg-
ment be denied, that the complaint be dismissed and
certifications be revoked, or, alternatively, that a
hearing be held on its objections. The General
Counsel, on the other hand, argues that there are no
litigable issues warranting a hearing because all
issues concerning the Union's certification in an
appropriate unit have been fully litigated and
determined in the underlying representation proceed-
ings in Cases 20-RC-13532 and 20-RC-13535. We
agree with the General Counsel.
A review of the record herein, including that in
representation Cases 20-RC-13532 and 20-RC-
13535, discloses that, after a hearing, the Regional
Director for Region 20 issued, on August 20, 1976, a
Decision and Direction of Election in which she
found two single-restaurant units to be appropriate
for purposes of collective bargaining. The Regional
Director also found that the Employer's "kitchen
supervisors" were supervisors within the meaning of
Section 2(11) of the Act and therefore excluded them
from such units. Respondent timely filed a request
for review of the Regional Director's Decision,
contending that the finding that single-restaurant
units are appropriate is contrary to Board precedent,
arbitrary and capricious, and that the "kitchen
supervisors" are more akin to leadpersons and,
F.2d 683 (C.A. 4, 1968); Golden Age Beverage Co., 167 NLRB 151 (1967),
enfd. 415 F.2d 26 (C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573
(D.C.Va., 1967); Foletrr Coip., 164 NLRB 378 (1967), enfd. 397 F.2d 91
(C.A. 7, 1968): Sec. 9(d) of the NLRA, as amended.
33
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therefore, should be included in the units. On
October 6, 1976, the Board denied the request as
raising no substantial issues warranting review.
Thereafter, elections were conducted on October 8,
1976. In Case 20-RC-13532 the Union prevailed by
a vote of 54 to 8, with no challenged ballots. The
Union also prevailed in Case 20-RC-13535 by a vote
of 13 to 12, with no challenged ballots. Following the
elections, Respondent filed timely objections to the
elections. In its objections to the election in Case 20-
RC-13532 Respondent alleged that the Union
violated Savair standards2 by promising to waive
initiation fees, that union agents were in the voting
area while the polls were open, that employees
engaged in electioneering and surveillance of the
polling area, and that the Union was a dominated
labor organization. In Case 20-RC-13535 Respon-
dent objected to the election on the same grounds
and further alleged that eligible voters were not
permitted to vote, and that the Board agent engaged
in certain misconduct which affected the results of
the election. After an investigation, during which
both parties were afforded the opportunity to present
evidence, the Regional Director issued a Supplemen-
tal Decision and Certification of Representative on
January 4, 1977, in Case 20-RC-13532 and on
January 5, 1977, in Case 20-RC-13535 overruling all
of the objections in both cases 3 and certifying the
Union.
On January 24 and 26, 1977, Respondent filed
requests for review of the Regional Director's
Supplemental Decisions, alleging that the Regional
Director made clearly erroneous factual findings
departing from precedent, that such findings were
prejudicial to the rights of the Employer, and that the
Regional Director's actions were arbitrary and
capricious. Thus it urged that the elections be set
aside and new elections be held. On February 15,
1977, the Board denied Respondent's requests for
review on the grounds that they raised no substantial
issues warranting review.
In the instant proceeding Respondent is attempting
once more to raise matters which were fully litigated
in the underlying representation cases. This it may
not do. It is well settled that in the absence of newly
discovered or previously unavailable evidence or
special circumstances a respondent in a proceeding
alleging a violation of Section 8(a)(5) is not entitled
to relitigate issues which were or could have been
litigated in a prior representation proceeding. 4
Furthermore, in denying Respondent's request for
2 N.L. RB. v. Savair Manufacturing Co. 414 UI.S. 270 (1973).
3 In both cases the Regional Director found that there was no unlawful
waiver of initiation fees under Sasair standards, and that the other
objections did not raise substantial or material issues with respect to
conduct affecting the election results.
review of the Regional Director's Supplemental
Decisions, the Board necessarily found that Respon-
dent had not raised issues warranting a hearing for
its objections and therefore, absent such substantial
issues, a hearing is not required. 5
All issues raised by the Respondent in this
proceeding were or could have been litigated in the
prior representation proceeding, and the Respondent
does not offer to adduce at a hearing any newly
discovered or previously unavailable evidence, nor
does it allege that any special circumstances exist
herein which would require the Board to reexamine
the decision made in the representation proceeding.
We therefore find that the Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding. Accordingly, we grant the
Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent is a California corporation engaged in
the restaurant business with facilities located
throughout the United States and Canada. During
the past 12 months, Respondent has received, in the
course and conduct of its business, in excess of
$500,000 in gross revenues. During the course and
conduct of its business during the past 12 months,
Respondent has purchased goods valued in excess of
$5,000 directly from suppliers located outside the
State of California.
We find, on the basis of the foregoing, 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, and that
it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Hotel and Restaurant Employees and Bartenders
Union, Local 2, Hotel and Restaurant Employees
and Bartenders International Union, AFL-CIO, is a
labor organization within the meaning of Section 2(5)
of the Act.
4 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Seecs. 102.67(f) and 102.69(c).
S Williams Energy Company, 218 NLRB 1080, 1081 (1975). See also CSC
Oil Company, 220 NLRB 19, 20 (1975), and Allied Meat Company, 220
NLRB 27 (1975).
34
THOMAS LORD'S RESTAURANT
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
I. The unit
The following employees of the Respondent
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All dining room and kitchen employees, including
bookkeeper, employed by the Employer at its
Thomas Lord's facility located at 2000 Union
Street, San Francisco, California; excluding
guards and supervisors (which includes kitchen
supervisors), as defined in the Act.
All dining room and kitchen employees, including
bookkeeper, employed by the Employer at its
Victoria Station facility located at 50 Broadway,
San Francisco, California; excluding guards and
supervisors (which includes kitchen supervisors),
as defined in the Act.
2. The certification
On October 8, 1976, a majority of the employees of
Respondent in said units, in secret-ballot elections
conducted under the supervision of the Regional
Director for Region 20, designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent.
The Union was certified as the exclusive collective-
bargaining representative of the employees in the two
units described above on January 4 and 5, 1977,
respectively, and the Union continues to be such
exclusive representative within the meaning of
Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refiusal
Commencing on or about March 23, 1977, and at
all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described units. Com-
mencing on or about April 1, 1977, and continuing at
all times thereafter to date, the Respondent has
refused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in said
units.
Accordingly, we find that the Respondent has,
since April 1, 1977, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the
appropriate units, and that, by such refusal, Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(aX5) and
(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section
III, above, occurring in connection with its opera-
tions described in section I, above, have a close,
intimate, and substantial relationship 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 com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(aX5) 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 units, and, if an understanding is
reached, embody such understanding in a signed
agreement.
In order to insure that the employees in the
appropriate units will be accorded the services of
their selected bargaining agent for the period
provided by law, we shall construe the initial period
of certification as beginning on the date Respondent
commences to bargain in good faith with the Union
as the recognized bargaining representative in the
appropriate units. See Mar-Jac Poultry Company,
Inc., 136 NLRB 785 (1962); Commerce Company
d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd.
328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817
(1964); Burnett Construction Company, 149 NLRB
1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Victoria Station Incorporated d/b/a Thomas
Lord's Restaurant and Victoria Station Incorporated
d/b/a Victoria Station is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Hotel and Restaurant Employees and Bartend-
ers Union, Local 2, Hotel and Restaurant Employees
and Bartenders International Union, AFL-CIO, is a
labor organization within the meaning of Section 2(5)
of the Act.
35
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The following units constitute appropriate
units for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act:
All dining room and kitchen employees, including
bookkeeper, employed by the Employer at its
Thomas Lord's facility located at 2000 Union
Street, San Francisco, California; excluding
guards and supervisors (which includes kitchen
supervisors), as defined in the Act.
All dining room and kitchen employees, including
bookkeeper, employed by the Employer at its
Victoria Station facility located at 50 Broadway,
San Francisco, California; excluding guards and
supervisors (which includes kitchen supervisors),
as defined in the Act.
4. Since January 4, 1977, with respect to the
Victoria Station facility, and January 5, 1977, as to
Thomas Lord's facility the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the
aforesaid appropriate units for the purpose of
collective bargaining within the meaning of Section
9(a) of the Act.
5. By refusing on or about April 1, 1977, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate units, 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, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(l) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing 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,
Victoria Station Incorporated d/b/a Thomas Lord's
Restaurant and Victoria Station Incorporated d/b/a
Victoria Station, San Francisco, California, 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 Hotel and Restau-
rant Employees and Bartenders Union, Local 2,
Hotel and Restaurant Employees and Bartenders
International Union, AFL-CIO, as the exclusive
bargaining representative of its employees in the
following appropriate units:
All dining room and kitchen employees, including
bookkeeper, employed by the Employer at its
Thomas Lord's facility located at 2000 Union
Street, San Francisco, California; excluding
guards and supervisors (which includes kitchen
supervisors), as defined in the Act.
All dining room and kitchen employees, including
bookkeeper, employed by the Employer at its
Victoria Station facility located at 50 Broadway,
San Francisco, California; excluding guards and
supervisors (which includes kitchen 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 them in 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 units with
respect to rates of pay, wages, hours, and other terms
and conditions of employment, and, if an under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its Thomas Lord's facility, 2000 Union
Street, and at its Victoria Station facility, 50
Broadway Street, San Francisco, California, copies
of the attached notice marked "Appendix." 6 Copies
of said notice, on forms provided by the Regional
Director for Region 20, after being duly signed by
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
6 In the event that 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 National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
36
THOMAS LORD'S RESTAURANT
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Hotel
and Restaurant Employees and Bartenders
Union, Local 2, Hotel and Restaurant Employees
and Bartenders International Union, AFL-CIO,
as the exclusive representative of the employees in
the bargaining units 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 representa-
tive of all employees in the bargaining units
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 agree-
ment. The bargaining units are:
All dining room and kitchen employees,
including bookkeeper, employed by the
Employer at its Thomas Lord's facility
located at 2000 Union Street, San Francisco,
California; excluding guards and supervisors
(which includes kitchen supervisors), as
defined in the Act.
All dining room and kitchen employees,
including bookkeeper, employed by the
Employer at its Victoria Station facility
located at 50 Broadway, San Francisco,
California; excluding guards and supervisors
(which includes kitchen supervisors), as
defined in the Act.
VICTORIA STATION
INCORPORATED D/B/A
THOMAS LORD'S
RESTAURANT
VICTORIA STATION
INCORPORATED D/B/A
VICTORIA STATION
37