KFC National Management Co.

National Labor Relations Board - Board Decisions

Jun 29, 1973

204 N.L.R.B. 630 (N.L.R.B. 1973)

630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
KFC National Management Company and Bartenders,
Hotel, Motel, Cafeteria and Restaurant Employees
Union, Local 116, AFL-CIO. Case 1-CA-8656
June 29, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
should not be granted. Respondent thereafter filed a
response to Notice To Show Cause and counsel for
the General Counsel filed a reply to the response.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Upon a charge and amended charge filed on Octo-
ber 30 and December 6, 1972, respectively, by Bar-
tenders, Hotel, Motel, Cafeteria and Restaurant
Employees Union, Local 116, AFL-CIO, herein
called the Union, and duly served on KFC National
Management Company, herein called the Respon-
dent, the General Counsel of the National Labor Re-
lations Board, by the Acting Regional Director for
Region 1, issued a complaint on December 13, 1972,
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Nation-
al Labor Relations Act, as amended. Copies of the
charge, complaint, and notice of hearing before an
Administrative Law Judge were duly served on the
parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on July 31, 1972, fol-
lowing a Board election in Case 1-RC-11692 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commencing
on or about November 7, 1972, and at all times there-
after, Respondent has refused, and continues to date
to refuse, to bargain collectively with the Union as the
exclusive bargaining representative, although the
Union has requested and is requesting it to do so. On
December 26, 1972, Respondent filed its answer to the
complaint denying each and every allegation in the
complaint.
On January 30, 1973, counsel for the General
Counsel filed directly with the Board a Motion to
Expunge Respondent's Answer and Motion for Sum-
mary Judgment. Subsequently, on February 6, 1973,
the Board issued an order transferring the proceeding
to the Board and a Notice To Show Cause why the
General Counsel's Motion for Summary Judgment
'Official notice is taken of the record in the representation proceeding,
Case 1-RC-I1692, as the term "record" is defined in Secs 102.68 and 102
69(f) of the Board 's Rules and Regulations, Series 8, as amended See LTV
Electrosystemr, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C.A. 4, 1968),
Golden Age Beverage Co, 167 NLRB 151, enfd 415 F.2d 26 (C A 5, 1969);
Intertype Co v. Penello, 269 F.Supp 573 (D.C Va, 1967); Follett Corp, 164
NLRB 378, enfd 397 F 2d 91 (C.A 7, 1968), Sec. 9(d) of the NLRA
Ruling on the Motion to Expunge Respondent's
Answer and Motion for Summary Judgment
In its answer to the complaint and response to the
Notice To Show Cause , the Respondent opposes the
grant of the Motion for Summary Judgment basically
on the grounds that the Union 's certification is invalid
because of the failure to grant a hearing on the
Respondent's objections to the elections and the fail-
ure of a quorum of the Board to act on Respondent's
Request for Review and Motion for Reconsideration,
and that its denial of the allegations in paragraph 2 of
the complaint raises factual issues concerning the
identity of the Employer which also requires a hear-
ing. The General Counsel contends in his reply that
the Respondent has not controverted the facts alleged
by the General Counsel in his Motion for Summary
Judgment and that no legitimate litigable issue exists.
We agree with the General Counsel.
Review of the record in the representation Case
1-RC-11692 reflects as follows:
In his May 17, 1972 , Second Supplemental Deci-
sion and Direction of Election the Regional Director
set aside the first election on the Union 's objections
and directed a new election in the appropriate unit of
employees at various locations of Kentucky Fried
Chicken of Massachusetts, Inc., and Kentucky Fried
Chicken of Connecticut , Inc., herein called Massa-
chusetts , Inc., and Connecticut , Inc., respectively. In
the second election held on June 16 , 1972, the Union
received a majority of the votes cast . The Respondent
filed timely objections to conduct affecting the results
of the election alleging that election results were not
based upon a representative voting complement and
that employees were coerced into voting for the
Union by the improper conduct of supervisors sympa-
thetic to the Union, acting contrary to Respondent's
instructions. In support thereof , the Respondent of-
fered to the Regional Director the testimony of sever-
al store employees and two store managers regarding
the latter's union advocacy and requested a hearing
on its objections . In his Third Supplemental Decision
on Objections and Certification of Representative is-
sued on July 31, 1972, the Regional Director found,
inter alia, that the participation of the two store man-
204 NLRB No. 69
NATIONAL MANAGEMENT CO.
agers in the union campaign appeared to be incidental
at best, denied a hearing on this matter because no
substantial and material issues were raised, overruled
the objections in their entirety, and certified the
Union.
The Respondent filed a timely request for review in
which it raised to the Board the Regional Director's
failure to grant a hearing on supervisory involvement
in the Union's election campaign and also his failure
to consider the issue of the Union's alleged interfer-
ence with the conduct of the investigation of objec-
tions. On September 7, 1972, the Board denied the
Respondent's request for review as it raised no sub-
stantial issues warranting review. Thereafter, on Octo-
ber 20, 1972, after it had received the Union's October
14, 1972, request to bargain, the Respondent filed a
Motion for Reconsideration of Request for Review
reiterating its arguments and also arguing that by de-
nying a hearing on its objections after having granted
one to the Union on its objections, the Respondent
has been deprived of equal protection of the law and
of due process. On November 30, 1972, the Board
denied the motion for reconsideration as lacking in
merit.
By its denials in the answer to all the allegations of
the complaint, the Respondent is attempting to reliti-
gate issues which had been raised and determined in
the underlying representation case, 1-RC-11692,
such as jurisdiction, commerce, the Union as a labor
organization, unit, majority status, and certification
of the Union. It is well settled that in the absence of
newly discovered or previously unavailable evidence
or special circumstances a respondent in a proceeding
alleging a violation of Section 8(a)(5) is not entitled to
relitigate issues which were or could have been litigat-
ed in a prior representation proceeding.'
The Respondent also denies the filing and service
of the charge and amended charge, which specifically
names the charged Respondent herein, and the re-
quest by, and refusal to bargain with, the Union. The
Respondent, however, has not controverted the docu-
ments attached to the General Counsel's Motion for
Summary Judgment which we find establish filing
and service of the charges (exhibits L(1) through
L(4)) and the request and the refusal to bargain (ex-
hibits F, H(a), H(c), and H(d) ).3
In its Motion to Expunge Respondent's Answer,
General Counsel contends that the answers with re-
spect to commerce, jurisdiction, and service are pat-
2 See Pittsburgh Plate Glass Co v. N L R B., 313 U S 146, 162 ( 1941), Rules
and Regulations of the Board, Secs 102.67( f) and 102 69(c)
3 There is no denial that as also alleged by the General Counsel, "on
December 6, 1972, the Respondent 's counsel indicated telephonically to a
field attorney of the Board's First Region that the Respondent desired to
challenge the Board's certification and hence would not meet with the
Union "
631
ently frivolous, in light of the prior litigation and doc-
uments submitted verifying service. We agree. Ac-
cordingly, General Counsel's Motion to Expunge
those portions of the answer is granted and the mat-
ters alleged in the complaint with respect thereto are
deemed true and are so found.
Respondent also seeks, by answer, to probe the
internal processes of this Board, by alleging that, on
information and belief, no quorum of the Board was
present when Respondent's Request for Review and
Motion for Reconsideration in the underlying repre-
sentation case were acted upon by the Board. Respon-
dent does not, nor indeed can it, assert that the Orders
issued in the name of the Board denying the Request
for Review and Motion for Reconsideration were not
duly authorized by action taken by the Board. While
quite superfluous, lest there be any doubt by any re-
viewing court which might consider this proceeding,
we record here and now that said Orders were author-
ized by this panel to be issued by the Board's Execu-
tive Secretary. Beyond that, Respondent has neither
right nor privilege to inquire. Neither the mental nor
internal administrative processes of an administrative
agency may be probed by a party to the proceedings,
and no Board Member or other official may be called
upon to testify in any hearing designed as a fishing
expedition into those processes. U.S. v. Morgan, 313
U.S. 409, 422 (1941).
Whether there was a quorum of Board Members
present at any formal meeting of this panel which may
have been called for purposes of oral discussion of the
Request for Review and Motion for Reconsideration
submitted by the Respondent is, in any event, of no
legal import. For this Board, like other administrative
agencies, may properly act upon such matters with or
without a formal meeting of its Members. Or, if the
agency so chooses, its Members may decide that they
would be aided by the benefit of discussions of con-
sultations between one or more Members and/or with
persons serving on any Board Member's staffs. It is
now clear that administrative agencies, like most
courts of appeals in certain cases, may decide matters
by notation and with no meeting at all. As was said
in T.S.C. Motor Freight Lines, Inc. v. United States,
186 F.Supp 777, 786 (1960); affd. in Herrin Transpor-
tation Co. v. United States, 366 U.S. 419 (1961):
The statute does not specifically provide that ad-
ministrative action be taken concurrently by the
deciding members in a formal meeting and we
decline to impose such a requirement.
For the above reasons, Respondent's contention in
this regard raises no issues of fact or law which would
make a hearing either necessary or appropriate.
The Respondent also denies the allegations of the
complaint that Massachusetts, Inc., and Connecticut,
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Inc., after a change in name on March 22, 1971,
merged into the Respondent herein on September 21
and October 18, 1971, respectively, thereby raising a
question of the identity of the Employer-Respondent.
In his Motion for Summary Judgment, the General
Counsel has alleged that, after the July 31, 1972, certi-
fication of the Union in the unit of employees at
various locations of Massachusetts , Inc., and Con-
necticut, Inc., it was learned that the above-named
Employers in reality were known as a different corpo-
rate entity, namely KFC National Management Com-
pany, the named Respondent herein. He has further
alleged, upon information and belief, that the bar-
gaining unit in which the election was conducted and
for which the certification-issued is the same bargain-
ing unit encompassed by the instant unfair labor prac-
tice charges. The Respondent has failed to deny
specifically the allegations presented in the General
Counsel's Motion for Summary Judgment. It has
merely contended generally that "there has been a
substantial change in the identity and structure of the
Employer who was involved in the representation
case," without offering specifics. The Respondent
does not claim that the unit no longer exists or the
employees involved are not readily identifiable. We
agree with the General Counsel that, even if corporate
structure has changed its legal form, there is no show-
ing that the substance of that structure has changed
for purposes of appropriateness of unit or for purpos-
es of bargaining with the certified representative of
the Respondent's employees at the locations involved.
Further, in his reply to the Respondent's response, the
General Counsel has noted that, in the underlying
representation case . Respondent 's former counsel
stipulated on the record the incorrect name of the
emplopyer so that, he argues, the error in the resulting
certification, an error in name only, is directly attrib-
utable to the Respondent. In all circumstances, we
find that the Respondent is the same employer entity,
with only a changed name, as the entity whose em-
ployees are covered in the Union's certification and
that the mere change of name affords no defense to
the General Counsel's motion.
All issues raised by the Respondent in this proceed-
ing, except as herein set forth, were or could have been
litigated in the prior representation proceeding, and
the Respondent does not offer to adduce at a hearing
any newly discovered or previously unavailable evi-
dence, nor does it allege that any special circumstanc-
es exist herein which would require the Board to
reexamine the decision made in the representation
proceeding. We therefore find that the Respondent
has not raised any issue which is properly litigable in
this unfair labor practice proceeding.
Accordingly, we shall grant the General Counsel's
Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Delaware corporation with its prin-
cipal office and place of business at 930 Bay Street,
Springfield, Massachusetts, is now and continuously
has been engaged in the operation of retail, fast food
outlets at various locations within the Commonwealth
of Massachusetts and the State of Connecticut. Dur-
ing the course and conduct of its business, the Re-
spondent has caused large quantities of food and
related products used by it in the retail sale of fast
food dinners to be purchased and transported in inter-
state commerce from and through the various States
other than the Commonwealth of Massachusetts.
Respondent's annual gross volume of business ex-
ceeds $500,000 and it annually receives food and re-
lated products valued in excess of $50,000 directly
from points outside the Commonwealth of Massachu-
setts.
We find, on the basis of the foregoing, that Respon-
dent 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 effectu-
ate the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Bartenders , Hotel , Motel , Cafeteria and Restaurant
Employees Union , Local 116, 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
The following employees of the Respondent consti-
tute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All employees of the Respondent employed at
its Walnut Street, Belmont Avenue, Parker Street
and Liberty Street, Springfield, Massachusetts
locations; 980 Westfield Street, West Springfield,
Massachusetts location and at Chicopee, Massa-
chusetts; Greenfield, Massachusetts; Holyoke,
Massachusetts; Northampton, Massachusetts;
Palmer, Massachusetts; Westfield, Massachu-
NATIONAL MANAGEMENT CO.
setts and Enfield, Connecticut locations, but ex-
cluding office clerical employees, guards and su-
pervisors as defined in the Act.
2. The certification
On June 16, 1972, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional Di-
rector for Region 1, designated the Union as their
representative for the purpose of collective bargaining
with the Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on July 31, 1972, and the Union continues
to be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
B. The Request To Bargain and
Respondent 's Refusal
Commencing on or about October 14, 1972, and at
all times thereafter , the Union has requested the Re-
spondent to bargain collectively with it as the exclu-
sive collective -bargaining representative of all the
employees in the above -described unit. Commencing
on or about November 7, 1972, and continuing at all
times thereafter to date , the Respondent has refused,
and continues to refuse , to recognize and bargain with
the Union as the exclusive representative for collec-
tive bargaining of all employees in said unit.
Accordingly, we find that the Respondent has,
since November 7, 1972, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that , by such refusal , Respondent
has engaged in and is engaging in unfair labor practic-
es within the meaning of Section 8(a)(5) and ( 1) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations
described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and (1) of the Act, we shall order
633
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 appro-
priate unit will be accorded the services of their select-
ed bargaining agent for the period provided by law,
we shall construe the initial period of certification as
beginning on the date Respondent commences to bar-
gain in good faith with the Union as the recognized
bargaining representative in the appropriate unit. See
Mar-Jac Poultry Company, Inc., 136 NLRB 785; Com-
merce Company d/b/a Lamar Hotel, 140 NLRB 226,
229, enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379
U.S. 817 (1964); Burnett Construction Company, 149
NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. KFC National Management Company is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Bartenders, Hotel, Motel, Cafeteria and Restau-
rant Employees Union, Local 116, AFL-CIO, is a
labor organization within the meaning of Section 2(5)
of the Act.
3. All employees of the Respondent employed at
its Walnut Streq Belmont Avenue, Parker Street and
Liberty Street, Springfield, Massachusetts locations;
980 Westfield Street, West Springfield, Massachusetts
location and at Chicopee, Massachusetts; Greenfield
Massachusetts; Holyoke, Massachusetts; Northamp-
ton Massachusetts; Palmer, Massachusetts; West-
field, Massachusetts and Enfield, Connecticut
locations, but excluding office clerical employees,
guards and supervisors as defined in the Act, consti-
tute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
4. Since July 31, 1972, the above-named labor or-
ganization has been and now is the certified and ex-
clusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about November 7, 1972, and
at all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Respon-
dent 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.
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 thereby has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing 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 Rela-
tions Board hereby orders that Respondent , KFC Na-
tional Management Company , Springfield , Massa-
chusetts , its officers , agents , successors , and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay , wages, hours , and other terms and condi-
tions of employment with Bartenders , Hotel , Motel,
Cafeteria and Restaurant Employees Union, Local
116, AFL-CIO, as the exclusive bargaining represen-
tative of its employees in the following appropriate
unit:
All employees of the Respondent employed at
its Walnut Street , Belmont Avenue , Parker Street
and Liberty Street, Springfield , Massachusetts
locations ; 980 Westfield Street , West Springfield,
Massachusetts location and at Chicopee , Massa-
chusetts ; Greenfield , Massachusetts ; Holyoke,
Massachusetts ; Northampton , Massachusetts;
Palmer, Massachusetts ; Westfield , Massachu-
setts and Enfield , Connecticut locations, but ex-
cluding office clerical employees, guards and
supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of
the rights guaranteed them in 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 under-
standing is reached , embody such understanding in a
signed agreement.
(b) Post at its Bay Street , Springfield, Massachu-
setts , place of business and its various retail , fast food
outlets in Massachusetts and Connecticut, copies of
the attached notice marked "Appendix." ° Copies of
said notice , on forms provided by the Regional Direc-
tor for Region 1, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent 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 the Regional Director for Region 1, in
writing, within 20 days from the date of this Order
what steps have been taken to comply herewith.
In the event that 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
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 con-
cerning rates of pay, wages, hours, and other
terms and conditions of employment with Bar-
tenders, Hotel, Motel, Cafeteria and Restaurant
Employees Union, Local 116, AFL-CIO, as the
exclusive representative of the employees in the
bargaining unit described below.
WE WILL NOT in any like or related manner in-
terfere 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 above-
named Union, as the exclusive representative of
all 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 Respondent employed
at its Walnut Street, Belmont Avenue, Parker
Street and Liberty Street, Springfield, Massa-
chusetts locations; 980 Westfield Street, West
Springfield, Massachusetts location and at
Chicopee, Massachusetts; Greenfield, Massa-
chusetts; Holyoke, Massachusetts; Northamp-
ton, Massachusetts; Palmer, Massachusetts;
Westfield, Massachusetts and Enfield, Con-
NATIONAL MANAGEMENT CO. 635
necticut locations , but excluding office clerical This is an official notice and must not be defaced
employees , guards and supervisors as defined by anyone.
in the 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.
KFC NATIONAL MANAGE- Any questions concerning this notice or compli-
MENT COMPANY ance with its provisions may be directed to the
(Employer) Board 's Office , Seventh Floor, Bulfinch Building, 15
New Chardon Street, Boston, Massachusetts 02114,
Dated By Telephone 617-223-3300.
(Representative ) (Title)