Tio Pepe, Inc.

National Labor Relations Board - Board Decisions

May 30, 1979

242 N.L.R.B. 636 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tio Pepe, Inc. and Bartenders, Hotel, Restaurant and
Cafeteria Employees Union, Local 36, Hotel and
Restaurant Employees and Bartenders International
Union, AFL-CIO. Case 5-CA-10452
May 30, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDALE
Upon a charge filed on January 15, 1979, by Bar-
tenders, Hotel, Restaurant and Cafeteria Employees
Union, Local 36, Hotel and Restaurant Employees
and Bartenders International Union, AFL-CIO,
herein called the Union, and duly served on Tio Pepe,
Inc., herein called Respondent, the General Counsel
of the National Labor Relations Board, by the Re-
gional Director for Region 5, issued a complaint on
January 26, 1979, against Respondent, alleging that
Respondent had engaged in and was engaging in un-
fair labor practices affecting commerce within the
meaning 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, 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 com-
plaint alleges in substance that on October 26,' 1978,
following a Board election in Case 5-RC-10373, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;2 and that, commencing
on or about January 5, 1979, Respondent has refused,
and continues to refuse, to meet and bargain in good
faith with the Union, and at all times thereafter, Re-
spondent has refused, and continues to date to refuse,
to bargain collectively with the Union as the exclu-
sive bargaining representative, although the Union
has requested and is requesting it to do so. On Febru-
ary 5, 1979, Respondent filed its answer to the com-
plaint admitting in part, and denying in part, the alle-
gations in the complaint.
On February 16, 1979, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on March 8,
1979, the Board issued an order transferring the pro-
ceeding to the Board and a Notice To Show Cause
I The complaint erroneously alleges the date of the certification to be Oc-
tober 25, 1978.
2 Official notice is taken of the record in the representation proceeding,
Case 5-RC-10373, as the term "record" is defined in Secs. 102.68 and
102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See
LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir.
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va. 1967);
Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec.
9(d) of the NLRA, as amended.
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent there-
after 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 Na-
tional Labor Relations Board has delegated its au-
thority 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 answer to the complaint, Respondent admits
its refusal to bargain, but attacks the appropriateness
of the unit and the certification on the basis that the
Board erred in certifying the Union as the exclusive
bargaining representative of Respondent's employees.
In his Motion for Summary Judgment, counsel for
the General Counsel alleges that Respondent seeks to
relitigate issues previously considered in the underly-
ing representation case and that there are no factual
issues warranting a hearing. In its response and oppo-
sition to the Motion for Summary Judgment and No-
tice To Show Cause, counsel for Respondent con-
tends that newly discovered evidence, previously
unavailable, vitiates the factual principles relied on
by the Board in the representation matter in conclud-
ing, inter alia, that the captains are nonsupervisory
employees and that the preelection conduct attrib-
uted to them did not warrant the setting aside of the
election.
Our review of the record herein, including the rec-
ord in Case 5-RC-10373. reveals that on February
23, 1978, the Union filed the petition alluded to
above. Thereafter, the Regional Director for Region 5
conducted a hearing on March 17, 1978. In the Deci-
sion and Direction of Election issued on March 29,
1978, the Regional Director, inter alia, found, con-
trary to the position of Respondent, that captains
were not supervisors within the meaning of the Act.
On April 11, 1978, Respondent filed with the Board a
request for review of the aforesaid Decision and Di-
rection of Election citing the unit placement of cap-
tains and bookkeepers as its principal grounds there-
for. On April 24, 1978, the Board granted request for
review only with respect to the unit placement of cap-
tains. The Regional Director, pursuant to the provi-
sions of Section 102.67(b) and (c)(3) of the Board's
Rules and Regulations, conducted the election as pre-
viously scheduled except that the ballots of the cap-
tains were challenged and all of the other ballots were
impounded pending the Board's determination on the
request for review. On May 5, 1978, Respondent filed
timely objections to conduct affecting the results of
242 NLRB No. 98
636
TIO PEPE, INC.
the election.3 On August 15, 1978, the Board issued its
Decision on Review, 237 NLRB 537 (1978), affirming
the Regional Director's Decision and Direction of
Election. On August 21, 1978, Respondent filed a mo-
tion for reconsideration of the Board's Decision on
Review. On August 22, 1978, the Board issued an
order amending its original Decision on Review and
directing that the impounded ballots be opened and
counted. On September 25, 1978, the Board issued an
order denying Respondent's motion for reconsider-
ation.
On September 29, 1978, the impounded ballots
were opened and counted. The tally of ballots re-
vealed that of 54 eligible voters, 31 voted for the
Union, 20 voted against the Union, and that I vote
was challenged.
On October 10, 1978, Respondent moved to trans-
fer the proceedings to the Board.
By an order dated October 24, 1978. the Board de-
nied the motion to transfer the proceedings.
On October 26, 1978, the Regional Director for Re-
gion 5 issued a Supplemental Decision and Certifica-
tion of Representative. 4
On November 9, 1978, Respondent filed a timely
request fbr review which was denied by the Board on
December 14, 1978.
By letter dated December 28, 1978, the Union re-
quested that Respondent meet with it to begin collec-
tive bargaining for the unit of employees involved
herein.
Respondent, by letter dated January 5, 1979, ad-
vised the Union that it would not recognize the certi-
fication of representative referred to above, and
would not meet with the Union for collective bargain-
ing.
In his response and opposition to the Motion for
Summary Judgment and Notice To Show Cause,
counsel for Respondent indicated that newly discov-
ered evidence fortifies Respondent's contention with
respect to the unit placement of captains and the ef-
fect of their preelection conduct on the outcome
thereof. The new evidence proffered consisted of an
affidavit from Respondent's co-owner. Jesus Perez,
dated March 19. 1979. and unsworn statements from
two waiters and one busboy. Perez avers in substance
that shortly before March 3, 1979, he learned of dis-
satisfaction among the waiters because the captains
had -rneged on their promise to increase their split of
tips after the Union won the election. Perez stated
that he called the employees together on Saturday.
) The objections. inter alia, alleged that the captains both threatened em-
ployees and promised to increase their split of gratuities if the Union won the
election.
'The appropriate unit is: All kitchen and dining room employees em-
ployed by the Employer at its Baltimore. Mar land, location, excluding all
office clerical employees, guards, and supervisors as defined in the Act.
March 3, 1979, and that in this meeting the captains
agreed to change the tip split for the waiters and bus-
boys.
In their unsworn statements dated March 3, 1979,5
the two waiters and the busboy allege merely that
during the period before the election the captains
promised to increase the split of the tips in favor of
the waiters and busboys.
In its Decision on Review in the representation
proceeding the Board found no merit in Respondent's
contention that the captains are supervisors within
the meaning of the Act. In reaching this conclusion
the Board pointed out that the evidence established
that: tips appeared to be controlled by tradition, that
there was no evidence that the captains had been told
they had authority to change the distribution of tips,
and that they (the captains) had not exercised any
authority over the splitting of tips.
Apart from any question of timeliness of Respon-
dent's submission of this evidence we are not per-
suaded that the new evidence adds any meaningful
indicia of the supervisory status to the captains. It is
clear that Perez simply called the dining room em-
ployees together on March 3, 1979, and thereby or-
chestrated whatever change that was made in the tips.
Consequently the criterion alluded to in the afore-
mentioned Decision on Review has not been met.
We come now to the unsworn claims of the two
waiters and one busboy that some of the captains
promised them a larger split of the tips if the Union
won. It is quite possible for one employee to "prom-
ise" another added benefits if the Union wins. The
ability to make the promise in no way demonstrates
that the employee has the power to carry it out. In-
deed here, on the employees' own evidence, the tips
were not changed until Respondent took action.
It is clear that the new evidence does not contribute
materially to that previously considered in the repre-
sentation proceeding and therefore offers no reason
for reopening the record therein. Accordingly, the
motion to reopen the record in the representation
matter is hereby denied. 6
It is well settled that in the absence of newly dis-
covered 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.'
I The untyped parts of the statements are written in Spanish. The) appear
to have been signed by two waiters and one busboy.
I Although the motion to reopen carries the number of the representation
case it was submitted together with the response to the Motion To Show
Cause. Therefore the Board feels it is properly considered in this proceeding
as part of our determination of the merits of the Motion for Summary Judg-
ment.
'See Pitsburgh Plate Glass Co. . N L R.B., 313 U.S. 146. 162 (1941);
Rules and Regulations of the Board, Secs 102.67 (f) and 102.6 9(c)
637
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding, and Respondent does not offer
to adduce at a hearing any newly discovered or previ-
ously unavailable evidence, other than as discussed
above, nor does it allege that any special circum-
stances exist herein which would require the Board to
reexamine the decision made in the representation
proceeding. We therefore find Respondent has not
raised any issue which is properly litigable in this un-
fair 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 FA(CT
I. THE BUSINESS (IF RESPONDENT
Respondent, a Maryland corporation, is engaged in
the operation of a restaurant at its Baltimore, Mary-
land, location. During the preceding 12 months, a
representative period, Respondent had gross revenues
in excess of $500,000. During the same period, Re-
spondent purchased and received, in interstate com-
merce, products valued in excess of $50,000 from
points located outside the State of Maryland.
We find, on the basis of the foregoing, that Respon-
dent 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.
11. THE LABOR ORGANIZATION INVOLVED
Bartenders, Hotel, Restaurant and Cafeteria Em-
ployees Union, Local 36, Hotel and Restaurant Em-
ployees and Bartenders International Union, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
I. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All kitchen and dining room employees em-
ployed by the Employer at its Baltimore, Mary-
land, location, excluding all office clerical em-
ployees, guards and supervisors as defined in the
Act.
2. The certification
On April 29, 1978, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional Di-
rector for Region 5, designated the Union as their
representative for the purpose of collective bargaining
with Respondent. The Union was certified as the col-
lective-bargaining representative of the employees in
said unit on October 26, 1978, and the Union contin-
ues to be such exclusive representative within the
meaning of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's Refusal
Commencing on or about December 28, 1978, and
at all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
or about January 5, 1979, and continuing at all times
thereafter to date, Respondent has refused, and con-
tinues to refuse, to recognize and bargain with the
Union as the exclusive representative for collective
bargaining of all employees in said unit.
Accordingly, we find that Respondent has, since
January 5, 1979, and at all times thereafter, refused to
bargain collectively with the Union as the exclusive
representative of the employees in the appropriate
unit, and that, by such refusal, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
IV. THE EFFECTI OF TIHE UNFAIR LABOR PRACTICES
UPON (OMMERCE
The activities of Respondent set forth in section
III. above, occurring in connection with its operations
described in section , above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce 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 and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and (I) 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 ap-
propriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
638
TIO PEPE, INC.
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commences
to bargain in good faith with the Union as the recog-
nized bargaining representative in the appropriate
unit. See Mar-Jac Poultr' Company, Inc., 136 NLRB
785 (1962); Commerce Company d/h/a Lamar Hotel,
140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th
Cir. 1964), cert. denied 379 U.S. 817 (1964): Burnett
Construction Company, 149 NLRB 1419, 1421 (1964),
enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONC(IUSIONS OF LAW
1. Tio Pepe, Inc., is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. Bartenders, Hotel, Restaurant and Cafeteria
Employees Union, Local 36, Hotel and Restaurant
Employees and Bartenders International Union,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All kitchen and dining room employees em-
ployed by the Employer at its Baltimore, Maryland,
location, excluding all office clerical employees,
guards. and supervisors as defined in the Act, consti-
tute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
4. Since October 26, 1978, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about January 5, 1979, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit, Respondent has en-
gaged 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
intertering with, restraining, and coercing. employees
in the exercise of the rights guaranteed them in Sec-
tion 7 of the Act, and thereby has engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)( I1) 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 Rela-
tions Board hereby orders that the Respondent, Tio
Pepe, Inc., its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and con-
ditions of employment with Bartenders, Hotel, Res-
taurant and Cafeteria Employees and Bartenders In-
ternational Union, AFL-CIO. as the exclusive
bargaining representative of its employees in the fol-
lowing appropriate unit:
All kitchen and dining room employees em-
ployed by the Employer at its Baltimore. Mary-
land, location, excluding all office clerical em-
ployees, 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 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 unit with
respect to rates of pay, wages, hours, and other terms
and conditions of employment, and, if an understand-
ing is reached. embody such understanding in a
signed agreement.
(b) Post at its Baltimore, Maryland. restaurant
copies of the attached notice marked "Appendix."'
Copies of said notice, on forms provided by the Re-
gional Director for Region 5, 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 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 bh any
other material.
(c) Notify the Regional Director for Region 5, in
writing, within 20 days from the date of this Order.
what steps have been taken to comply herewith.
I In the event Ihai this Order is enforced bh a judgment of a United States
Court of Appeals. the vords n the notice reading "Posted h order of the
National La)or Relations Board'" shall read "Piosted Pursuant to a Judgment
of he United States Court Iof Appeals Enforcing an Order of the National
l.ahor Relations Board"
639
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Bar-
tenders, Hotel, Restaurant and Cafeteria Em-
ployees Union, Local 36, Hotel and Restaurant
Employees and Bartenders International Union,
AFL-CIO, as the exclusive representative of the
employees in the bargaining unit described be-
low.
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 unit de-
scribed 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 kitchen and dining room employees em-
ployed by the Employer at its Baltimore,
Maryland, location, excluding all office cleri-
cal employees, guards and supervisors as de-
fined in the Act.
Tlo PEPE, INC.
640