Dobbs House, Inc.Download PDFNational Labor Relations Board - Board DecisionsFeb 10, 1970181 N.L.R.B. 83 (N.L.R.B. 1970) Copy Citation DOBBS HOUSE, INC. 83 Dobbs House , Inc. and Hotel and Restaurant Employees and Bartenders Union, Local 181, AFL-CIO and General Drivers, Warehousemen and Helpers Local No. 89, affiliated with the International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America. Case 9-CA-5318 February 10, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS be granted. On December 5, 1969, the Respondent filed a response to order to show cause and a brief in support thereof. 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 MOTION FOR SUMMARY JUDGMENT Upon a charge filed by Hotel and Restaurant Employees and Bartenders Union , Local 181, AFL-CIO and General Drivers, Warehousemen and Helpers , Local 89 , affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America , herein called the Union , the General Counsel of the National Labor Relations Board , by the Regional Director for Region 9, issued a complaint dated October 21 , 1969, against Dobbs House , Inc., herein called Respondent , alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Sections 8(a)(5) and (1) and 2 (6) and (7) of the National Labor Relations Act, as amended . Copies of the charge , complaint, and notice of hearing before a Trial Examiner were duly served upon the Respondent. With respect to the unfair labor practices, the complaint alleges , in substance , that on or about February 26, 1969 , the Unions were duly certified by the Regional Director for Region 9 as the joint exclusive representative of Respondent's employees in the unit agreed by the parties to be appropriate and thereafter on or about June 2 , 1969, requested that the Respondent bargain with them; that since on or about July 15, 1969, and thereafter, the Respondent has refused and is refusing to recognize or bargain with the Unions as such exclusive joint bargaining representative , although the Unions have requested and are requesting it to do so . On October 28, 1969 , the Respondent filed its answer , admitting in part , and denying in part , the allegations of the complaint , and requesting that the complaint be dismissed. On November 17, 1969 , the General Counsel filed with the Board a motion for summary judgment, asserting , in view of admissions contained in the Respondent ' s answer and other relevant material annexed as appendices to the moving papers, that there are no issues of fact or law requiring a hearing, and praying issuance of a Decision and Order finding the violations as alleged in the complaint . On November 26, 1969 , the Board issued an order transferring proceeding to the board, and on the same date , a notice to show cause on or before December 6, 1969 , why the General Counsel ' s motion for summary judgment should not The record establishes that on December 15 and 27, 1967, the Unions, as joint Petitioners, filed petitions seeking to represent certain employees of Respondent. (Cases 9-RC-7551 and 9-RC-7559.) On January 25, 1968, the Regional Director approved an agreement for consent election executed by the parties which stated that the following employees of the Respondent constituted an appropriate unit: All employees employed by the Employer at its Flight Kitchen 1 at Louisville, Kentucky, including all drivers, helpers, loaders, dishwashers, cooks, bakers, storeroom employees, belt employees, salad employees, sandwich employees, and porters, but excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. On February 28, 1968, an election was conducted among the employees in the above unit with' the Unions receiving a majority of the valid votes cast.' On March 6, 1968, the Respondent filed three timely objections to conduct affecting results of election. The Regional Director conducted an investigation of the objections, and on July 31, 1968, issued a report in which he found that two of the three objections were without merit and overruled them, and that a third objection raised substantial and material issues of fact which required a hearing to resolve. The hearing was held on September 10 and 11, 1968, before a duly designated Hearing Officer, and all parties were given opportunity to adduce evidence on the objection issue. On November 21, 1968, the Hearing Officer issued his report in which he made findings of fact, conclusions of law, and a recommendation to the Regional Director that the objection be overruled. On February 26, 1969, the Regional Director, after reviewing exceptions to the Hearing Officer's report filed by Respondent, overruled the objections and certified the Unions as the joint bargaining representative of the employees in the appropriate unit. On or about June 2, 1969, the Unions requested the Respondent to meet with them for the purpose of negotiating a collective-bargaining agreement. Since on or about July 15, 1969, the Respondent, admittedly, has refused such request. 'There were three challenged ballots which were not determinative of the 181 NLRB No. 16 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In its answers to both the complaint and the notice to show cause the Respondent defends its refusal to bargain on the grounds that: (1) the Regional Director erred in failing to sustain its objections to the election; (2) Respondent is entitled to a hearing at some stage of the proceedings respecting all objections to conduct affecting the election; (3) in view of the substantial changes in the employee complement coupled with the failure of the Unions to exercise "their questionable status" for a period in excess of 16 months after the election, the Respondent was justified in its refusal to bargain; and (4) the Board lacks jurisdiction because the Respondent is not an employer within the meaning of Section 2(2) of the Act, and its employees are not employees within the meaning of Section 2(3) of the Act, but are employees under the Railway Labor Act. In support of this latter contention the Respondent urges that the question of its status as an employer, etc., should be certified to the National Mediation Board, or in the alternative, the proceeding remanded to a Trial Examiner for hearing on this question. Prior to the election the parties executed a consent election agreement. Under the terms of that agreement the Regional Director's rulings on objections are to be "final and binding."' As noted above, following the election the Respondent filed timely objections, which, after either investigation or hearing, were subsequently overruled by the Regional Director. In these circumstances, and in the absence of any allegations, and proof thereof, that the Regional Director's determinations were arbitrary or capricious, the Respondent is now bound by such determinations.' Moreover, in the absence of newly discovered previously unavailable evidence that warrants a hearing, which is not the case herein, the Board does not permit relitigation in a subsequent 8(a)(5) complaint proceeding of issues which were or could have been raised in a prior representation proceeding.4 Nor, contrary to Respondent's contention number 2, is a party, in any event, entitled to a hearing as a matter of right on all objections to an election.' With respect to Respondent's contention number 3, we note that the Unions' demand for bargaining was made approximately 4 months after certification and well within the 1-year period during which their majority status, absent unusual circumstances, which again is not the case here, is presumed absolute.' To include the months intervening between the election and the certification would, in effect, unfairly reward the Respondent for litigating objections to elections. election 'Jas A Matthews Co. 145 NLRB 1680, 1683. See National Labor Relations Board Rules and Regulations, Series 8, as amended, Sec 102.62(a). Also see agreement for consent election , par 6, attached to the formal papers as an Appendix . [Appendix ommitted from publication I 'Jas A Matthews Co, supra 'Pittsburgh Plate Glass Company v. N L R B, 313 U.S 146, Brush-Moore Newspapers. Inc, 161 NLRB 1620 'O K Van and Storage Inc, 127 NLRB 1537, enfd 297 F 2d 74 (C.A 5) With respect to contention number 4, i.e., that neither the Respondent nor its employees fall within the meaning of Section 2(2) and (3) of the Act, respectively, the Respondent admits that the same contention was raised in a prior representation case' concerning Respondent's similar catering and restaurant operations at the Memphis, Tennessee, International Airport, and that "after full hearing the Board did not find that either the Employer or employees came within the jurisdiction of the Railway Labor Act," rather than the National Labor Relations Act. Inasmuch as the Respondent herein has not submitted any new evidence warranting a contrary conclusion, we reaffirm our earlier finding in this regard and find contention number 4 to be without merit. Accordingly, we find that no issue has been raised which is properly triable in the instant unfair labor practice proceeding. All material issues thus having been previously decided by the Board or admitted by the answers to the complaint, or stand admitted by the failure to controvert the averments of the General Counsel's motion, there are' no matters requiring a hearing before a Trial Examiner. We shall, therefore, grant the motion for summary judgment. On the basis of the record before us we make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is now, and has been at all time material herein, a corporation duly organized under and existing by virtue of the laws of the State of Tennessee. Respondent is engaged in the operation of airline catering kitchens in several states, including Kentucky. During the past 12 months, which is a representative period, Respondent in the course and conduct of its business operations at Louisville, Kentucky, had a direct outflow of materials in interstate commerce, valued in excess of $50,000, which it sold and caused to be shipped directly from its Louisville, Kentucky, location to points outside the State of Kentucky. Although it admitted the above facts in its answer to the complaint, Respondent contends that its relationship to common carriers by air bring it acid its employees within the coverage of the Railway Labor Act and thus they are exempt as an employer or employees under Section 2(2) and (3) respectively, of the National Labor Relations Act. Based upon Respondent's answer to the complaint and our reaffirmance of our earlier finding in Case 26-RC-3579 involving Respondent's similar catering 'Ray Brooks v N L R B, 348 U S 96; Stan Long Pontiac, Inc, 175 NLRB No 71 'Case 26-RC-3579 (unreported) The Board denied the Employer's request for review of the Regional Director ' s Decision and Direction of Election on November 13, 1969 DOBBS HOUSE, INC. 85 operations in Memphis , Tennessee , we find that Respondent is, and has been at all times material herein , an employer within the meaning of Section 2(2) of the Act and engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED (a) Hotel and Restaurant Employees and Bartenders Union, Local 181 , AFL-CIO, is a labor organization within the meaning of Section 2(6) and (7) of the Act. (b) General Drivers , Warehousemen and Helpers Local Union 89, affiliated with the International Brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the meaning of Section 2(6) and (7) of the Act. bargain collectively with the Unions as the joint exclusive collective - bargaining representative of its employees in the appropriate unit , and, by such refusal , the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) and ( 1) of the Act. 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 flow of commerce. 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 employed by the Employer at its Flight Kitchen 1 at Louisville , Kentucky, including all drivers , helpers, loaders, dishwashers, cooks, bakers , storeroom employees, belt employees, salad employees, sandwich employees, and porters , but excluding all office clerical employees , professional employees , guards and supervisors as defined in the Act. 2. The certification On or about February 28, 1968, a majority of the employees in the unit described above, in a secret-ballot election conducted under the supervision of the Regional Director for Region 9, designated the Unions as their joint representative for the purpose of collective bargaining , and, on or about February 26, 1969, the Board certified the Unions as the joint exclusive bargaining representative of employees in said unit. B. The Request To Bargain and the Respondent 's Refusal Commencing on or about June 2, 1969, and continuing to date , the Unions have requested and are requesting the Respondent to bargain collectively with them as the joint exclusive collective - bargaining representative of all the employees in the above-described unit . Since on or about July 15, 1969 , and continuing thereafter, Respondent did refuse , and continues to refuse, to V. THE REMEDY Having found the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom , and, upon request, bargain collectively with the Unions as the joint 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 selected 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). CONCLUSIONS OF LAW 1. Dobbs House, Inc., is an Employer within the meaning of Section 2(2) of the Act , and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Hotel and Restaurant Employees and Bartenders Union , Local 181, AFL-CIO, and General Drivers, Warehousemen and Helpers Local 89, affiliated with the International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America are labor organizations within the meaning of Section 2 (5) of the Act. 3. All employees employed by the Employer at its Flight Kitchen I at Louisville, Kentucky, including all drivers , helpers , loaders, dishwashers, cooks, bakers, storeroom employees, belt employees, salad employees, sandwich employees, and porters, but 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since on or about February 26, 1969, the above-named labor organizations have been the joint exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about July 15, 1969, and at all times thereafter, to bargain collectively with the above-named labor organizations as the joint exclusive bargaining representative of all the employees of Respondent in the appropriate unit, 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 employees in the exercise of the rights guaranteed to 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 labor practices affecting commerce within the meaning 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, Dobbs House, Inc., Louisville, Kentucky, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning wages, hours, and other terms and conditions of employment, with Hotel and Restaurant Employees and Bartenders Union, Local 181, AFL-CIO, and General Drivers, Warehousemen and Helpers Local 89, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the joint exclusive bargaining representative of its employees in the following appropriate unit: All employees employed by the Employer at its Flight Kitchen I at Louisville, Kentucky, including all drivers, helpers, loaders, dishwashers, cooks, bakers, storeroom employees, belt employees, salad employees, sandwich employees, and porters, but excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the purposes of the Act: (a) Upon request, bargain collectively with the above-named labor organizations, as the joint exclusive representative of all employees in the aforesaid 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 Louisville, Kentucky, place of business, copies of the attached notice marked "Appendix".8 Copies of said notice, on forms provided by the Regional Director for Region 9, shall, after being duly signed by Respondent's representative, 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 by any other material. (c) Notify said Regional Director for Region 9, in writing, within 10 days from the date of this Decision and Order, what steps Respondent has taken to comply herewith. 'In the event this Order is enforced by a judgment of the 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." 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 with Hotel and Restaurant Employees and Bartenders Union, Local 181, AFL-CIO, and General Drivers, Warehousemen and Helpers Local 89, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the joint 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 collectively with the above-named Unions as the joint exclusive representative of all employees in the bargaining unit described below with respect to 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 employed by the Employer at its Flight Kitchen 1 at Louisville, Kentucky, including all drivers, helpers, loaders, dishwashers, cooks, bakers, storeroom employees, belt employees, salad employees, sandwich employees, and porters, but DOBBS HOUSE, INC. 87 excluding all office clerical employees, professional This is an official notice and must not be defaced by employees, guards and supervisors as defined in the anyone Act 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. DOBBS HOUSE, INC. Any questions concerning this notice or compliance (Employer) with its provisions, may be directed to the Board's Office, Dated By Federal Office Building, Room 2407, 550 Main Street, (Representative) (Title) Cincinnati, Ohio 45202, Telephone 513-684-3686. Copy with citationCopy as parenthetical citation