Dobbs House, Inc.

National Labor Relations Board - Board Decisions

Feb 10, 1970

181 N.L.R.B. 83 (N.L.R.B. 1970)

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.