Yankee Whaler Inn

National Labor Relations Board - Board Decisions

Sep 24, 1984

272 N.L.R.B. 313 (N.L.R.B. 1984)

YANKEE WHALER CO 313
Specialty Restaurants Corporation, d/b/a Yankee
Whaler Company, d/b/a Yankee Whaler Inn
and Hotel Employees and Restaurant Employ-
ees Union Local 11, Hotel & Restaurant Em-
ployees and Bartenders International Union,
AFL-CIO Case 21-CA-22462
24 September 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
Upon a charge filed by Hotel Employees and
Restaurant Employees Union Local 11, Hotel &
Restaurant Employees and Bartenders International
Union, AFL-CIO, herein called the Union, on 3
August 1983,' the General Counsel of the National
Labor Relations Board issued a complaint on 16
September against the Specialty Restaurants Cor-
poration, d/b/a Yankee Whaler Company, d/b/a
Yankee Whaler Inn, the Respondent, alleging that
it has violated Section 8(a)(5) and (1) of the Na-
tional Labor Relations Act 2
The complaint alleges that on 4 May, following
a Board election in Case 21-RC-17119, the Union
was certified as the exclusive collective-bargaining
representative of the Respondent's employees in
the unit found appropriate (Official notice is taken
of the "record" in the representation proceeding as
defined in the Board's Rules and Regulations, Secs
102 68 and 102 69(g), amended Sept 9, 1981, 46
Fed Reg 45922 (1981), Frontier Hotel, 265 NLRB
343 (1982) ) The complaint further alleges that
since 20 July the Respondent has refused to bar-
gain with the Union On 26 September the Compa-
ny filed its answer admitting in part and denying in
part the allegations in the complaint
On 8 November the General Counsel filed a
Motion for Summary Judgment On 18 November
the Board issued an order transferring the proceed-
ing to the Board and a Notice to Show Cause why
the motion should not be granted The Company
filed a response The General Counsel subsequently
filed an answer to the response, "Motion to Amend
Complaint," and "Motion to Complete Record"
1 All dates referred to are 1983 unless otherwise noted
2 In its response to the Notice To Show Cause the Respondent notes
that par 10 of the complaint alleges a violation of Sec 8(a)(3) of the Act
The General Counsel has filed a Motion to Amend the Complaint" The
General Counsel states that the reference in par 10 to Sec 8(a)(3) rather
than Sec 8(a)(5) is a typographical error The General Counsel directs
our attention both to the language of par 10 which is standard pleading
for an 8(a)(5) violation and par 13 which specifically alleges a violation
of Sec 8(a)(5) The General Counsel also points out that the first amend
ed charge alleged a violation of Sec 8(a)(5) and that a copy of It was
served on the Respondent Under all the circumstances we grant the
General Counsel s Motion to Amend the Complaint The Respondent
suffers no prejudice by such action
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
Ruling on Motion for Summary Judgment
In its answer to the complaint and its response to
the Notice to Show Cause, the Company admits its
refusal to bargain with the Union as the exclusive
collective-bargaining representative of its employ-
ees, but attacks the validity of the certification on
the basis of its objections to the election in the rep-
resentation proceeding The General Counsel
argues that all material issues have been decided
previously We agree with the General Counsel
The record, including the record in Case 21-
RC-17119, reveals that on 20 January the Regional
Director for Region 21 issued a Decision and Di-
rection of Election On 24 February a secret-ballot
election was conducted under the supervision of
the Regional Director for Region 21 The correct-
ed tally of ballots shows that of approximately 50
eligible voters, 27 cast valid ballots for and 22
against the Union, there were no challenged bal-
lots After conducting an investigation of the Com-
pany's objections to election conduct, the Regional
Director for Region 21 issued his Supplemental
Decision recommending that the objections be
overruled and a Certification of Representative be
issued The Company requested review of the Re-
gional Director's Supplemental Decision and Certi-
fication of Representative On 1 June the Board
denied the Company's request for review
The Company contends that the Board's denial
of its request for review was improper because the
Board did not have before it the full investigative
record Specifically, the Company argues that the
affidavits of Prado and Ruiz upon which the Re-
gional Director relied should have been submitted
to and examined by the Board when it considered
the request for review Relying on NLRB v Ad-
vanced Systems, 681 F 2d 570, 575 (9th Or 1982),
the Company maintains that such an argument con-
stitutes "extraordinary circumstances" which re-
quire the Board to reexamine its decision in the un-
derlying representation proceeding We disagree
In accordance with our policy of protecting inves-
tigatory affidavits from disclosure when the wit-
nesses who gave them have not testified at a hear-
ing, statements of witnesses are expressly excluded
from the record Board's Rules and Regulations,
Sec 102 69(g)(1)(n), Frontier Hotel, supra Thus the
affidavits were properly excluded from the record
and the Board's attendant failure to consider them
272 NLRB No 57
YANKEE WHALER CO 315
ORDER
The National Labor Relations Board orders that
the Respondent, Specialty Restaurants Corporation,
d/b/a Yankee Whaler Company, d/b/a Yankee
Whaler Inn, San Pedro, California, its officers,
agents, successors, and assigns, shall
1 Cease and desist from
(a) Refusing to bargain with Hotel Employees
and Restaurant Employees Union Local 11, Hotel
& Restaurant Employees and Bartenders Interna-
tional Union, AFL-CIO, as the exclusive bargain-
ing representative of the employees in the bargain-
ing unit
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act
2 Take the following affirmative action neces-
sary to effectuate the policies of the Act
(a) On request, bargain with the Union as the ex-
clusive representative of the employees in the fol-
lowing appropriate unit on terms and conditions of
employment and, if an understanding is reached,
embody the understanding in a signed agreement
All full-time and regular part-time employees
employed by Specialty Restaurants Corpora-
tion, d/b/a Yankee Whaler Company, d/b/a
Yankee Whaler Inn at its restaurant and cock-
tail lounge located at Berth 75, San Pedro,
California, excluding guards and supervisors as
defined in the Act
(b) Post at its facility in San Pedro, California,
copies of the attached notice marked "Appendix "5
Copies of the notice, on forms provided by the Re-
gional Director for Region 21, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
tonal Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation
al 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 violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT refuse to bargain with Hotel Em-
ployees and Restaurant Employees Union Local
11, Hotel & Restaurant Employees and Bartenders
International Union, 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 exer-
cise 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 bargaining unit
All full-time and regular part-time employees
employed by Specialty Restaurants Corpora-
tion, d/b/a Yankee Whaler Company d/b/a
Yankee Whaler Inn at its restaurant and cock-
tail lounge located at Berth 75, San Pedro,
California, excluding guards and supervisors as
defined in the Act
SPECIALTY RESTAURANTS CORPORA-
TION, D/B/A YANKEE WHALER COM-
PANY, D/B/A YANKEE WHALER INN
5 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