Davis Cafeteria, Inc.,

National Labor Relations Board - Board Decisions

Nov 20, 1963

145 N.L.R.B. 82 (N.L.R.B. 1963)

82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We reject the first contention. It is now well settled that an em-
ployer's operations may affect commerce by reason of its purchases
of goods which are brought into the State by its supplier.' Here the
volume of such purchases is substantial. We find, therefore, that the
Employer's operations do affect commerce within the meaning of
Section 2 (7) of the Act. As to the second contention, the record shows
that the Employer's annual purchases of goods originating from
places outside the State of Michigan total more than the $50,000 estab-
lished as the minimum jurisdictional amount for nonretail enter-
prises.2 However, the Employer's operations are basically retail in
nature. We therefore now decide the question left open in the El
Paso S and Chartiers' country club decisions, and hold that the retail
standard is the applicable standard for operations of the nature en-
gaged in by the Employer. As the Employer's gross revenues are
less than the $500,000 required under that standard,' we find that it
will not effectuate the policies of the Act to assert jurisdiction herein.
Accordingly, we shall dismiss the petition.
[The Board dismissed the petition.]
1 N.L.R B. v. Reliance Fuel Oil Corporation , 371 U.S. 224
2 See Siemons Mailing Service, 122 NLRB 81, 85.
s El Paso Country Club, Inc, 132 NLRB 942
9 Pennsylvania Labor Relations Board (Chartiers Country Club ), 139 NLRB 741.
6 Carolina Supplies and Cement Co, 122 NLRB 88, 89
Davis Cafeteria, Inc., and Polly Davis Broward Cafeteria, Inc.
and Hotel & Restaurant Employees & Bartenders Union,
Local 339, AFL-CIO. Case No. 12-CA-2606. November 20,1963
DECISION AND ORDER
On August 12, 1963, Trial Examiner Rosanna A. Blake issued her
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices within the meaning of the Act and recommending that
they cease and desist therefrom and take certain affirmative action, as
set forth in the attached Intermediate Report. Thereafter, the Re-
spondents filed exceptions to the Intermediate Report and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
145 NLRB No. 15.
DAVIS CAFETERIA, INC., ETC. 83
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner.'
1 The Recommended Order Is hereby amended by substituting for the first paragraph
therein, the following paragraph:
Upon the entire record in this case, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, the National Labor Relations Board hereby orders
that Respondents, Davis Cafeteria, Inc., and Polly Davis Broward Cafeteria, Inc..
their officers, agents, successors, and assigns, shall:
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed on March 21 and April 4, 1963, by the Hotel & Restaurant
Employees & Bartenders Union, Local 339, AFL-CIO, herein called the Union, the
General Counsel, acting through the Regional Director for the Twelfth Region,
issued a complaint on April 22, 1963, alleging that the Respondents had violated
Section 8(a)(5) and (1) of the Act by refusing to bargain, on request, with the
Union which had hitherto been certified by the Regional Director of the Twelfth
Region of the Board as the bargaining representative of the Companies' employees.
In their answer, Respondents denied having committed any unfair labor practice.
As set forth in detail infra, Respondents' basic position throughout has been that
they were under no obligation to bargain with the Union because the certification
which was issued by the Board in Case No. 12-RC-1603 was invalid and a nullity
because: (1) the Board is without jurisdiction over them; (2) the units certified
for collective bargaining are inappropriate; and (3) certain conduct (described
infra) improperly influenced the election conducted by the Board among the em-
ployees of Polly Davis Broward Cafeteria, Inc.
A hearing was held before Trial Examiner Rosanna A. Blake on June 17 and 18,
1963, at Miami, Florida. Respondents and the General Counsel were represented
by counsel and the issues and the contentions of the parties were set forth on the
record. The chief issue raised and discussed was Respondents' contention that they
had a legal right to relitigate fully issues raised and decided in the representation
proceeding, principally the appropriateness of the bargaining units and the alleged
prejudicial effect of certain conduct in connection with the election at one of the
Companies. Following my ruling that I would not permit the relitigation of issues
previously raised and decided and would not receive evidence known to Respondents
prior to the close of the representation hearing, or which could have been known
to them with reasonable diligence, Respondents made offers of proof with respect
to certain of the issues. The offers of proof (which appear in the transcript of the
proceeding) were rejected. Respondents also offered documentary evidence with
respect to the same issues . These, too, were rejected and appear as rejected exhibits.
None of the parties presented oral argument but a brief has been received from
counsel for Respondents. The latter has been carefully considered by me.'
Upon the basis of the entire record in the case, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENTS AND THE LABOR ORGANIZATION INVOLVED
In the representation case referred to above (Case No. 12-RC-1603),2 the Regional
Director for the Twelfth Region in his Decision and Direction of Election (discussed
infra) found as follows with respect to the Respondents' business activities:
' The official report of proceedings in this case contains several errors which require
correction in order that the transcript accurately reflect statements made at the hearing.
2Davi,s Cafeteria, Inc, and Polly Davis Broward Cafeteria, Inc, and Hotel & Restaurant
Employees & Bartenders Union, Local 339, AFL-CIO (not published in NLRB volumes).
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Davis Cafeteria, Inc., and Polly Davis Broward Cafeteria, Inc., are wholly
Owned subsidiaries of Miami Cafeteria, Inc., with general offices in Miami,
Florida, a multi-State operation controlling several cafeterias in and outside
Florida. The latter grossed in excess of $800,000 in the operation of Davis
Cafeteria, Inc., and Polly Davis Broward Cafeteria, Inc., during the past year;
and during the same period purchased for them over $138,000 of meats and
other food products from local suppliers (who themselves meet the Board's
$50,000 direct inflow standard), 90% of which was received from outside the
State of Florida. Employer thus meets the Board's standard for assertion of
jurisdiction over retail enterprises. Carolina Supplies and Cement Co., 122
NLRB 88, 89; International Restaurant Associates, Inc., 133 NLRB 1088.
In the circumstances, the Trial Examiner finds that Respondents at all times
material herein have been and are now engaged in commerce within the meaning
of Section 2(6) and (7) of the Act and that it would effectuate the purposes of
the Act to assert jurisdiction herein. Lucas County Farm Bureau Co-operative As-
sociation, 128 NLRB 458, enfd. 289 F. 2d 844 (C.A. 6); Optical Workers' Union
Local 24859, et al. v. N.L.R.B., 227 F. 2d 687 (C.A. 5), cert. denied 351 U.S. 963.
Hotel & Restaurant Employees & Bartenders Union, Local 339, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The underlying representation case
As previously indicated, Davis Cafeteria, Inc., which is located in Hollywood,
Broward County, Florida, and Polly Davis Broward Cafeteria, Inc., which is located
in Fort Lauderdale, Broward County, Florida, are wholly owned subsidiaries of
Miami Cafeteria, Inc. The latter has its principal office in Miami and operates five
cafeterias in and around Miami, all in Dade County, which adjoins Broward County.
In late November 1962, the Union filed a representation petition with the
Board seeking certification as the collective-bargaining representative of the em-
ployees at the Hollywood and Fort Lauderdale cafeterias in a single unit. A
hearing was held in Miami on December 11, 1962. The Employers were represented
by counsel and were afforded the opportunity to and in fact did call witnesses who
testified to the amount and nature of purchases made by each Company from two
suppliers (Armour and Company and Swift and Company) and also described the
nature and organization of the Companies and the manner in which they are managed
and operated.
The Employers contended that the Board was without jurisdiction over them, that
the unit sought by the Union was inappropriate for collective bargaining, and asserted
that they had a good-faith doubt that the Union represented a majority of the em-
ployees. The Employers' position with respect to the unit was that it should include
the employees of all seven Polly Davis Cafeterias in the area, i e., the two in Broward
County and the five in Dade County, or at least should include the four cafeterias
within the parent Company's administrative division, i.e., the two sought to be
represented by the Union in Broward County plus two in Dade County. The Union
stated that it could not "accept" a unit which included any cafeterias located outside
Broward County because its jurisdiction is confined to that county.
On December 26, 1962, the Regional Director for the Twelfth Region issued his
Decision and Direction of Election in which he found that the Employers are engaged
in commerce within the meaning of the Act and that it would effectuate the purposes
of the Act to assert jurisdiction. He also established two bargaining units, unit # 1
being composed of the employees of the cafeteria at Hollywood and unit #2 being
composed of the employees of the cafeteria at Fort Lauderdale. The facts upon
which the Regional Director made both his commerce and unit determinations were
based upon the undisputed testimony of the Employers' witnesses.
The Employers requested review by the Board of the Regional Director's com-
merce and unit determinations . The request for review was denied on January 23,
1963, and elections were scheduled for January 26, 1963. The election at Holly-
wood (unit #1) was scheduled for the morning of January 25, and the one at Fort
Lauderdale (unit #2) for the afternoon of the same day. The Union won the morning
election by a vote of 28 to 11, and the afternoon election by a vote of 20 to 7.
Prior to the election , a Board representative had advised the parties, inter alia, that
the ballots cast at the morning election at Hollywood would not be counted until
the afternoon election at Fort Lauderdale was concluded. At a meeting the day before
the election, the Union requested that the votes at Hollywood be counted and the re-
sult announced immediately following the close of the polls. The Employers objected
to the change. -
DAVIS CAFETERIA, INC., ETC. 85
Shortly before the polls were opened at Hollywood on the morning of January 25,
the Board representative announced that the Hollywood votes would be counted
and the result announced as soon as the election was over and this was in fact
done.
Thereafter, the Employers filed timely objections to the election which were
based in part upon the change in procedure described above, the Companies' conten-
tion being that the prompt announcement of the results of the voting at unit #I-
Hollywood-materially prejudiced the Employers' rights by tainting the atmosphere
surrounding the afternoon voting at unit #2-Fort Lauderdale. They renewed their
claim that the units established were inappropriate and asserted, in addition, that:
(1) the Board had not duly considered their request for review of the Regional
Director's Decision and Direction of Election and that the Board's appeal procedure
is arbitrary and capricious; and (2) the Union was actively campaigning among the
employees on the morning and afternoon of the election and was making false
promises to them during that time.
The Regional Director conducted an investigation of the issues raised by the objec-
tions. No hearing was held but the Employers were given an opportunity to present
evidence and they submitted the affidavits of nine persons in support of their conten-
tion that the announcement of the Hollywood results influenced the results of the
later election at Fort Lauderdale.3 At the conclusion of his investigation, the Regional
Director issued a Supplemental Decision, Order, and Certification of Representative
in which he overruled the objections and certified the Union as the bargaining rep-
resentative of the employees in both unit #1 (Hollywood) and unit #2 (Fort
Lauderdale).
The Employers' request for review of the Regional Director's Supplementary
Decision, Order, and Certification of Representative was denied by the Board on
April 10, 1963.
B. The refusal to bargain
Following the Board's denial of the Employers' request for review of the Regional
Director's Supplementary Decision, Order, and Certification of Representative, the
Union requested the Companies to bargain with it and they refused on the ground
that "negotiations would be premature" until the issues which they had raised in
the representation proceeding had been determined by the Board and the courts.
In their answer to the complaint, the Respondents asserted as a defense to the
allegation that they had violated the Act by refusing to bargain with the Union
basically the same contentions they had made in the representation case, i.e., that
the bargaining units were inappropriate, that the announcement of the results of the
election in unit #1 (Hollywood) had improperly influenced the results of the election
in unit #2 (Fort Lauderdale) and that they had a good-faith doubt of the Union's
majority. Their answer also alleged that "new evidence had been discovered which
requires a redetermination of the bargaining units." At the bearing they moved for
dismissal of the complaint on the grounds that the Board is without jurisdiction
over them and that even if it has legal jurisdiction, its assertion of jurisdiction was
improper. Their motion was denied.
Respondents did not deny that they had failed to bargain, on request, with the
Union and did not adduce any evidence on this issue. On the contrary, their posi-
tion was that they had a legal and constitutional right to relitigate, ab initio, issues
raised and passed upon in the representation proceeding, chiefly the appropriateness
of the bargaining units and their claim that the announcement of the results of the
morning election in unit #1 (Hollywood) improperly influenced the results of the
afternoon election in unit #2 (Fort Lauderdale).
In view of Respondents' statement in their answer that "new evidence had been
discovered" which required a redetermination of the bargaining units, they were
permitted to identify for the record and offer in evidence numerous documents con-
cerning the manner in which the Companies are operated and managed. Many of
these, as well as numerous offers of proof, were rejected on the ground that the docu-
ments or facts were either known to Respondents during the course of the representa-
tion proceeding or could have been discovered by them with reasonable diligence.
Also rejected for the same reason, were offers of proof and exhibits concerning
the alleged effect on the afternoon election of the announcement of the results of
the morning vote
On the other hand, evidence and exhibits were received concerning the operation
of the Companies since the close of the representation proceeding. Nothing therein
indicates that there has been any change since that time. On the contrary, both the
8 The Employers presented no evidence in support of its objection based on the Union's
alleged electioneering and false promises and it was not mentioned in the instant proceeding.
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony and the exhibits establish that the businesses continue to be operated as
before.
Accordingly, I find that: (1) Respondents tendered no evidence which was not
in their possession and/or known to them throughout the representation proceeding
or which could not have been discovered with reasonable diligence; (2) Respondents
adduced no evidence concerning any change in their operations since the close of
the representation proceeding. It follows, therefore, and I find that Respondents
presented no evidence which requires or justifies redetermination of the appropriate
bargaining units or of any other issue raised and decided in the representation
proceeding.
I am therefore bound by the decisions of the Regional Director in the representa-
tion case which the Board affirmed by denying the requests for review. As stated
by the Supreme Court in Pittsburgh Plate Glass Company v. N.L.R.B., 313 U.S.
146, 162, where the same issues previously litigated in the underlying representation
case were similarly sought to be relitigated in the complaint case, "a single trial of
the issues was enough." See also Ideal Laundry and Dry Cleaning Co., 140 NLRB
1412.
I accordingly find that Respondents violated Section 8(a)(5) and (1) of the Act
by refusing to bargain with the Union, on request, following the Board's denial of
Respondents' request for review of the Regional Director's Supplemental Decision,
Order, and Certification of Representative.
III. THE REMEDY
Having found that Respondents have refused and still refuse to bargain collec-
tively with the Union in the appropriate units described herein, in violation of Section
8(a)(5) and ( 1) of the Act, my Recommended Order, among other things, will
direct Respondents to cease and desist therefrom and, upon request , to bargain col-
lectively with the Union as the exclusive representative of the employees in the units
set forth above.
CONCLUSIONS OF LAW
1. Respondents are engaged in commerce within the meaning of Section 2(6) and
(7) of the Act and it would effectuate the purposes of the Act to assert jurisdiction
herein.
2. Hotel & Restaurant Employees & Bartenders Union, Local 339, AFL-CIO,
is a labor organization within the meaning of Section 2(5) of the Act.
3. The following units of Respondents' employees are appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b) of the Act:
Unit # 1: All employees employed at Davis Cafeteria, Inc., 1820 Harrison
St., Hollywood, Florida, but excluding office clerical employees, guards, and
supervisors as defined in the Act.
Unit #2• All employees employed at Polly Davis Broward Cafeteria, Inc.,
2321 N. Federal Highway, Fort Lauderdale, Florida, but excluding office
clerical employees, guards, and supervisors as defined in the Act.
4. On or after February 28, 1963, and at all times thereafter, the Union was and
now is the representative of Respondents' employees in the appropriate units de-
scribed above for the purpose of collective bargaining within the meaning of Sec-
tion 9(a) of the Act.
5. By refusing on or about April 26, 1963, and thereafter, to bargain with the
Union, on request, as the exclusive representative of the employees in the above-
described appropriate units, Respondents have engaged in and are engaging in an
unfair labor practice within the meaning of Section 8(a)(5) and (1) of the Act.
6 The aforesaid unfair labor practice affects commerce within the meaning of
Section 2 (6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings and conclusions and the entire record , including the
record in the underlying representation case, I hereby recommend that the
Respondents , Davis Cafeteria , Inc., and Polly Davis Broward Cafeteria , Inc., their
officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain with Hotel & Restaurant Employees & Bartenders Union,
Local 339, AFL-CIO, as the exclusive representative of their employees in the
units found appropriate concerning rates of pay , wages, hours of employment, and
other terms and conditions of employment.
DAVIS CAFETERIA, INC., ETC. 87
(b) In any manner interfering with the efforts of the above-named Union to bar-
gain collectively with the above -named Companies on behalf of the employees in
the above-described units.
2. Take the following affirmative action necessary to effectuate the policies of
the Act.
(a) Upon request , bargain collectively with Hotel & Restaurant Employees &
Bartenders Union, Local 339, AFL-CIO, as the exclusive bargaining representative
of their employees in the units found appropriate , and, if understandings are reached,
embody such understandings in a written agreement or written agreements.
(b) Post at their cafeterias at Hollywood and Fort Lauderdale , Florida, copies
of the attached notice marked "Appendix ." 4 Copies of said notice , to be furnished
by the Regional Director for the Twelfth Region, shall, after being duly signed by
Respondents ' authorized representative , be posted by Respondents immediately upon
receipt thereof , in conspicuous places, including all places where notices to employees
are customarily posted, and maintained for 60 consecutive days thereafter . Reason-
able steps shall be taken to see that said notices are not altered , defaced, or covered
by other material.
(c) Notify said Regional Director , in writing , within 20 days from the receipt of
this Intermediate Report, what steps Respondents have taken to comply herewith.5
I In the event that this Recommended Order be adopted by the Board , the words "A
Decision and Order" shall be substituted for the words "A Recommended Order of a
Trial Examiner" in the notice In the further event that the Board ' s Order be enforced
by a decree of a United States Court of Appeals , the words "A Decree of the United
States Court of Appeals , Enforcing an Order" shall be substituted for the words "A
Decision and Order "
' In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read. "Notify said Regional Director , in writing, within 10 days
from the date of this Order , what steps the Respondents have taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL, upon request, bargain collectively with Hotel & Restaurant Em-
ployees & Bartenders Union , Local 339, AFL-CIO, as the exclusive bargaining
representative of our employees in the appropriate units described below con-
cerning rates of pay, wages , hours of employment, and other terms and condi-
tions of employment , and, if understanding is reached , we will enter into a
signed agreement or signed agreements of such understanding for a reasonable
time. The appropriate units are:
Unit # 1: All employees employed at Davis Cafeteria, Inc., 1820 Har-
rison St ., Hollywood, Florida , but excluding office clerical employees,
guards, and supervisors as defined in the Act.
Unit #2: All employees employed at Polly Davis Broward Cafeteria,
Inc., 2321 N . Federal Highway , Fort Lauderdale , Florida, but excluding
office clerical employees , guards, and supervisors as defined in the Act.
WE WILL NOT in any manner interfere with the efforts of Hotel & Restaurant
Employees & Bartenders Union , Local 339, AFL-CIO, to bargain collectively
as the exclusive representative of the employees in the bargaining units described
above.
DAVIS CAFETERIA , INC., AND POLLY DAVIS
BROWARD CAFETERIA, INC.,
Employers.
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.
Employees may communicate directly with the Board's Regional Office, Ross
Building, 112 East Cass Street , Tampa 2, Florida, Telephone No. 223-4623, if they
have any question concerning this notice or compliance with its provisions.