Walli's Supper Club, Inc.

National Labor Relations Board - Board Decisions

Mar 18, 1969

174 N.L.R.B. 1224 (N.L.R.B. 1969)

1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Walli's Supper Club, Inc . and Local 794, Hotel and
Restaurant Employees and Bartenders
International Union , AFL-CIO. Case 7-CA-7032
March 18, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
Upon a charge and amended charge filed by
Local 794, Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO, herein
called the Union, the General Counsel for the
National Labor Relations Board for Region 7 issued
a complaint dated November 26, 1968, against
Walli's Supper Club, Inc , herein called Respondent,
alleging that the Respondent had engaged in and
was engaging in unfair labor practices 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 , amended charge,
complaint, and notice of hearing were duly served
upon the Respondent and the Union.
With respect to the unfair labor practices, the
complaint alleges , in substance , that on October 11,
1968, the Regional Director for Region 7 certified
the Union as the collective - bargaining agent of the
Respondent's employees in the unit found
appropriate ,' and that, on or about November 9,
1968, and thereafter , the Respondent failed and
refused to recognize and bargain with the Union as
such exclusive bargaining representative of the
employees in the certified unit at the Respondent's
Commissary, although the Union has requested and
is requesting Respondent to do so. On December 6,
1968, the Respondent filed its answer to the
complaint , denying the commission of the unfair
labor practices alleged and presenting its affirmative
defense to the allegations.
On January 2, 1969, the General Counsel filed
with the Board a Motion to Transfer Case to the
Board and Motion for Summary Judgment,
submitting , in effect, that the Respondent ' s answer,
including its affirmative defenses, raise no issues
which have not or could not have been litigated in
the prior representation case; that the operative facts
admitted or affirmatively pleaded suffice to establish
the violations alleged in the complaint ; and that,
therefore , the Board should grant his Motion for
Summary Judgment , and issue a Decision and
Order finding the violations alleged and remedying
the unfair labor practices so found . Thereafter, on
January 6 , 1969, the Board issued an Order
Transferring the Proceeding to the Board and a
Notice to Show Cause , on or before January 21,
1969, why the General Counsel's Motion for
'Cases 7-RC-8823 and 7-RC-8873, consolidated by order issued April 8,
1968 The unit sought in the former case was found inappropriate
Summary Judgment should not be granted. On
January 16, 1969, the Respondent filed an
opposition to the General Counsel's Motion for
Summary Judgment.
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.
Upon the entire record in this case, the Board
makes the following:
RULING ON THE MOTION FOR SUMMARY
JUDGMENT
In its opposition to the General Counsel's Motion
for Summary Judgment, the Respondent contends
that the certified unit is inappropriate, and that it is
entitled to a hearing on this "legal issue" first raised
in its Request for Review of the Regional Director's
Decision, Direction of Election and Order, and
reiterated in its affirmative defense. Respondent has
had a full hearing on the facts relevant to the unit
issues involved in the consolidated representation
proceeding 2 Respondent is not entitled to an
additional hearing solely on the legal conclusion
based on these facts, nor may it, through its
affirmative defense, relitigate matters decided by the
Board in the underlying representation proceeding.
The record before us establishes that on May 16,
1968, the Regional Director issued his Decision and
Direction of Election, finding , inter alia , that a unit
of employees at Respondent's Commissary was
appropriate. Thereafter, the Respondent filed with
the Board a Request for Review of the Regional
Director's Decision, Direction of Election and
Order This Request was denied by the Board on
July 30, 1968. On August 8, 1968, a secret ballot
election was conducted among the employees at
Respondent's Commissary, under the supervision of
the Regional Director for Region 7 The final tally
of ballots showed that the Union received a majority
of the valid votes cast.' Thereafter, on October 11,
'Respondent asserts that it was denied a hearing in Case 7-RC-8873 The
facts reveal that the Union originally filed a petition in Case 7-RC-8823 to
represent Respondent's employees working at one of Employer's facilities
known as Drive-in No I At the hearing on this petition Respondent attempted
to show that only an overall unit of employees in the Supper Club,
Commissary and Drive-Ins No 1 and No 2 is appropriate In support of this
contention , Respondent introduced evidence covering the interrelationship
of these operations and the working conditions of employees in each When
the Union subsequently filed a petition in Case 7-RC-8873 seeking to
represent a unit composed of employees at the Commissary, Respondent
wrote a letter to the Region stating "All of the facts with respect to this
matter were made part of the record in case No 8823 and our position is still
the same that the entire organization, including both corporations, is
the appropriate unit " Based on the above letter , the Regional Director on
April 8, 1968 , issued an Order Consolidating Cases , in which he found a
further hearing for Case 7-RC-8873 unnecessary Although Respondent
was thereby put on notice that its letter was accepted as a waiver of further
hearing , it gave no indication that it regarded a further hearing necessary
until after a decision on those facts was rendered In view of the foregoing,
we find Respondent ' s contention that it was denied a hearing in Case
7-RC-8873 without merit
'Respondent does not contest the conduct of the election or the tally of
ballots
174 NLRB No. 183
WALLI' S SUPPER CLUB, INC.
1968, the Regional Director issued a Certification of
Representative to the Union as the exclusive
bargaining representative of the Employer's
Commissary employees.
By letters dated November 9 and November 22,
1968, and by numerous oral statements, the Union
requested and is requesting the Respondent to
bargain collectively with it as the exclusive
collective-bargaining representative of the
employees. In response to these requests,
Respondent has since November 9, 1968, refused
and continues to refuse to meet with the Union
solely because it assertedly viewed the unit as
inappropriate and considered the Board's
certification of the Union to be erroneous.
We find no basis for entertaining the
Respondent's unit contention. It is well established
that, in the absence of newly discovered or
previously unavailable evidence, a respondent is not
entitled to relitigate in an 8(a)(5) proceeding issues
which were or could have been raised in a related
representation proceeding.'
As all material issues have previously been
decided by the Board, or stand admitted by the
failure of the Respondent to controvert properly the
averments of the General Counsel's motion, there
are no matters requiring a hearing before a Trial
Examiner. Accordingly, General Counsel's Motion
for Summary Judgment is granted. On the basis of
the record before it, the Board makes the following-
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The Respondent is, and has been at all times
material herein, a corporation duly organized and
existing under the laws of the State of Michigan and
is engaged in the retail preparation and sale of food
and food products During the past year,
Respondent, in the course and conduct of its
business operations, obtained gross revenues in
excess of $500,000 from the sale and distribution of
food and food products During the same period
Respondent received goods and material in the
course and conduct of its business which were
transported directly to its Flint, Michigan, location
from places outside the State of Michigan.
We find, on the basis of the foregoing, that the
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.
'Pittsburg Plate Glass Company Y N L R B. 313 U S 146
II. THE LABOR ORGANIZATION INVOLVED
1225
Local 794, Hotel and Restaurant Employees 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
1. The Unit
At all times material herein, the following
employees of the Respondent have constituted a unit
appropriate for collective bargaining within the
meaning of the Act:
All employees of the Employer's Flint, Michigan,
Commissary, including cooks, kitchen help and
truckdrivers, but excluding supervisors within the
meaning of the Act.
2. The Certification
On August 9, 1968, a majority of the employees
of the Respondent in said unit, in a secret ballot
election conducted under the supervision of the
Regional Director for Region 7 designated the
Union as their representative for the purpose of
collective bargaining with the Respondent On
October 11, 1968, the Regional Director for Region
7 certified the Union as the collective-bargaining
representative of the employees in said unit, and the
Union continues to be such representative.
B. The Request To Bargain and the
Respondent's Refusal
Commencing on or about November 9, 1968, and
continuing to date, the Union has requested and is
requesting the Respondent to bargain collectively
with it as the exclusive collective-bargaining
representative of all the employees in the
above-described unit. Since on or about November
9, 1968, and continuing to date the Respondent did
refuse and continues to refuse, to bargain
collectively with the Union as the exclusive
collective-bargaining representative of all the
employees in said unit.
We find that the Union has been at all times since
October 11, 1968, and now is the exclusive
bargaining representative of all the employees in the
above-described unit , within the meaning of Section
9(a) of the Act. We further find that the Respondent
has since on or about November 9, 1968, refused to
bargain collectively with the Union as the exclusive
bargaining representative of its employees in the
appropriate unit , and that, by such refusal, the
Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section
8(a)(5) and (I) of the Act.
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The acts of the 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 now of
commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices within the meaning 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 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 elected
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).
employees of the Respondent in the aforesaid
appropriate unit, the 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, its
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
7. The aforesaid unfair labor practices are unfair
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
CONCLUSIONS OF LAW
1. Walli's Supper Club, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2 Local 794, Hotel and Restaurant Employees
and Bartenders International Union, AFL-CIO, is a
labor organization within the meaning of Section
2(5) of the Act.
3. All employees of the Employer's Flint,
Michigan, Commissary, including cooks, kitchen
help, and truckdrivers, but excluding supervisors
within the meaning of the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since October 11, 1968, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of
collective bargaining within the meaning of Section
9(a) of the Act.
5. By refusing on or about November 9, 1968,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the
exclusive bargaining representative of all the
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Walli's Supper Club, Inc., Flint, Michigan, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning the
rates of pay, wages, hours, and other terms and
conditions of employment, with Local 794, Hotel
and Restaurant Employees and Bartenders
International Union, AFL-CIO, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All employees of the Employer's Flint, Michigan,
Commissary, including cooks, kitchen help, and
truckdrivers, but excluding supervisors within the
meaning of the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed 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 its Flint, Michigan, place of business,
copies of the attached notice marked "Appendix "5
Copies of said notice, on forms provided by the
Regional Director for Region 7, shall, after being
duly signed by the Respondent's representative, 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
'in the event that this Order is enforced by a decree of a United States
WALLI'S SUPPER CLUB , INC. 1227
(c) Notify said Regional Director for Region 7, in
writing, within 10 days from the date of this
Decision and Order, what steps the Respondent has
taken to comply herewith.
Court of Appeals , there shall be substituted for the words "a Decision and
Order," the words "a Decree of the United States Court of Appeals
enforcing an Order "
APPENDIX
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 employees of the Employer's Flint, Michigan,
Commissary, including cooks, kitchen help, and
truckdrivers, but excluding supervisors within the
meaning of the Act.
NOTICE TO ALL EMPLOYEES
WALLI 'S SUPPER CLUB,
Pursuant to a Decision and Order of the National INC.
Labor Relations Board and in order to effectuate the (Employer)
policies of the National Labor Relations Act, as amended,
we hereby notify our employees that.
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, 500 Book
Building, 1249 Washington Boulevard, Detroit, Michigan
48226, Telephone 313-226-3200
WE WILL NOT refuse to bargain collectively with
Local 794, Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO, 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