Maine Caterers, Inc. & W. H. Maine, Inc.

National Labor Relations Board - Board Decisions

Aug 25, 1980

251 N.L.R.B. 505 (N.L.R.B. 1980)

MAINE CATERERS. INC. AND W H. MAINE. INC 505
Maine Caterers, Inc. and W. H. Maine, Inc. and
Brotherhood of Industrial Caterers. Case 1-
CA- 17298
August 25, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MMHBERS
JENKINS AND PENEI.IO
Upon a charge filed on March 21, 1980, by
Brotherhood of Industrial Caterers, herein called
the Union, and duly served on Maine Caterers,
Inc., and W. H. Maine, Inc., herein called Re-
spondent, the General Counsel of the National
Labor Relations Board, by the Regional Director
for Region 1, issued a complaint and notice of
hearing on April 22, 1980, against Respondent, al-
leging that Respondent had engaged in and was en-
gaging in unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (1) and
Section 2(6) and (7) of the National Labor Rela-
tions Act, as amended. Copies of the charge and
complaint and notice of hearing before an adminis-
trative law judge were duly served on the parties
to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on May 18,
1979, following a Board election in Case I-RC-
16143, the Union was duly certified as the exclu-
sive collective-bargaining representative of Re-
spondent's employees in the unit found appropri-
ate;' and that, commencing on or about February
18, 1980, and at all times thereafter, Respondent
has refused, and continues to date to refuse, to bar-
gain collectively with the Union as the exclusive
bargaining representative, although the Union has
requested and is requesting it to do so. On April
25, 1980, Respondent filed its answer to the com-
plaint admitting in part, and denying in part, the al-
legations in the complaint.
On May 20, 1980, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on May 30, 1980,
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent
thereafter filed a response to Notice To Show
Cause.
' Official notice is taken of the record in the representation proceed-
ing, Case I-RC-16143, as the term "record" is defined in Secs. 102 68
and 102. 69 (g) of the Board's Rules and Regulations. Series 8, as amended
See LTV Electrosystems.Inc.. 166 NLRB 938 (1967), enfd 388 F.2d 683
(4th Cir. 1968); Golden Age Beverage Co. 167 NLRB 151 (1967). enfd 415
F2d 26 (5th Cir 1969); Inrterype Co v Penello. 29 F.Supp 573
(D.C Va. 1967). Follelt Corp.. 164 NLRB 378 (1967). enfd 397 F 2d 91
(7th Cir. 1968) Sec 9(d) of the NLRA, as amended
251 NLRB No. 91
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:
Ruling on the Motion for Summary Judgment
In its answer to the complaint and in its response
to the Board's Notice To Show Cause. Respondent
set forth the following defenses: W. H. Maine, Inc..
hereinafter referred to as Maine, Inc., is not en-
gaged in commerce within the meaning of the Act;
Maine, Inc., and Maine Caterers are not joint em-
ployers for the purpose of "Jurisdiction" or "Unit"
findings and conclusions under the Act; and the
drivers of Maine, Inc., are not employees within
the meaning of the Act, but rather are independent
contractors. 2
The record shows that Respondent in the under-
lying representation case (I-RC-16143) raised the
same arguments; and that the Regional Director for
Region I in his Decision and Direction of Election
on April 5, 1979, determined that Maine Caterers
and Maine, Inc., constituted a single employer
within the meaning of the Act; that W. H. Maine,
president of both corporations, testified in great
detail concerning the operations of both corpora-
tions, was present throughout the hearing while the
issue was fully litigated, and had full opportunity
to present and cross-examine witnesses; and that
the nonsalaried driver salesmen are not accorded
that freedom which marks the independent con-
tractor, but rather that Respondent has retained the
right to control the means and manner by which
the customers of Respondent are serviced. The Re-
gional Director, therefore, concluded that the non-
salaried driver-salesmen are employees within the
meaning of the Act, and the unit sought was ap-
propriate for collective-bargaining purposes.
On April 24, 1979, Respondent filed with the
Board a request for review of the Regional Direc-
tor's decision; and on May 8, 1979, the Board
2 Respondent, in its objection to the Motion fr Summar) Judgnment.
also states that counsel for Maine Caterers has asserlted continuousls that
he does not and has not been employed to represent W H Maine, Inc
The record shows that counsel initially entered an appearance at the
hearing for W. H Maine, Inc. filed an answer to the complaint on behalf
of both W H Maine. Inc., and Maine Caterers, entered into unu.CessliI
settlement negotiations for both filed a request sith the Board on hllf
of both for review of the Regional DiorecIlo'. Decsi in m I)lrectlion f
Election; and responded to the Motilon for Summar 5 Judgniil on behah;lt
of both Moreover. the record further shksm, t i Ise isuc if hether N
H Maine I c, and Maine Caterers constitltted a sirlgle in mploscr 'as
fully litigated at the hearinlg and hait Mr Nalrie. tIestified i length lon-
cerning this issue, and and at ilo point requesled tillr fr fo her I I e tclllno
ny or additional itillesses
50h DECISIONS OF NA IONAI. LABOR RELATIONS BOARD
denied Respondent's request on the grounds that it
raised no substantial issues warranting review.
Review of the record establishes that the Union
won the election conducted on May 10, 1979, and
was certified as bargaining representative on May
18, 1979, by the Regional Director.
The Union requested that Respondent begin col-
lective-bargaining by letters dated June 21, 1979,
and January 10 and 30, 1980. Respondent by letter
dated February 18, 1980, refused, on the grounds
that "Maine Caterers does not recognize [the
Union] as the certified exclusive bargaining agent
for the independent contractors who operate Maine
Caterers vehicles." This objection was originally
raised in the underlying representation case, in its
Request to the Board for Review of the Regional
Director's decision, and in its opposition to the
Motion for Summary Judgment.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging a violation of Section 8(a)(5) is not entitled
to relitigate issues which were or could have been
litigated in a prior representation proceeding."
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
ered or previously unavailable evidence, nor does
it allege that any special circumstances exist herein
which would require the Board to reexamine the
decision made in the representation proceeding. We
therefore find that Respondent has not raised any
issue which is properly litigable in this unfair labor
practice proceeding. Accordingly, we grant the
Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Maine Caterers, Inc., is a Rhode Island corpora-
tion engaged in the distribution and sale of food,
beverage, and convenience items at its Rhode
Island location. W. H. Maine, Inc. (hereinafter
called Maine, Inc.), also a Rhode Island corpora-
tion, is engaged in the leasing of catering trucks
and routes to driver-salesmen who sell and distrib-
ute the products of Maine Caterers. The parties
stipulated that Maine Caterers is engaged in com-
merce in that it has a gross volume in excess of
$500,000 per year, and annually receives goods
:' Sec Prlthurgh Plat' Glat. Co v. '.L.R.B., 313 r S 146, 162 (1941)
Rules and Rcgulalion, of the HBoard, Sec. 102 67(f1 and IO2 6h9(c).
valued in excess of $50,000 directly from suppliers
outside the State.
William H. Maine is the president, treasurer, and
secretary of Maine Caterers. His brother, Henry
Maine, is the vice president. William H. Maine is
also the president, vice president, and secretary-
treasurer of Maine, Inc. William H. Maine owns all
the stock in both corporations. Neither corporation
has a board of directors. The corporations are to-
tally dependent upon each other since the products
of Maine Caterers are distributed solely by the
trucks of Maine, Inc., and the trucks of Maine,
Inc., are leased solely to the driver-salesmen. The
trucks owned by Maine, Inc., carry the name
"Maine Caterers." The Regional Director found,
and we agree, that inasmuch as Maine Caterers and
Maine, Inc., have common ownership, common
control, common management, and integration of
operations, they constitute a single employer within
the meaning of the Act. As such, jurisdiction over
Maine, Inc., is established by the commerce stipula-
tions entered into by the parties with respect to
Maine Caterers. Film Projects, Inc. d/b/a Capitol
Theatre. Capitol Rock, Inc., and Monarch Entertain-
ment Bureau, Inc., 231 NLRB 1370, 1374-75
(1977), Marsal Transport, Inc., Salvador Sisneros, d/
b/a International Transportation Co., 199 NLRB
689, 691 (1972).
We find, on the basis of the foregoing, that Re-
spondent 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 effectuate the policies of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOI.VED
Brotherhood of Industrial Caterers is a labor or-
ganization within the meaning of Section 2(5) of
the Act.
111. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All nonsalaried driver-salesmen employed by
Maine Caterers, Inc. and W. H. Maine, Inc., at
its Warwick, Rhode Island, location, but ex-
cluding all salaried driver-salesmen, all other
employees, office clerical employees, profes-
sional employees, guards, and supervisors as
defined in the Act.
MAINE CATERERS, INC. AND W'. H. MAINE INC 507
2. The certification
On May 10, 1979, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional
Director for Region 1, designated the Union as
their representative for the purpose of collective
bargaining with Respondent. The Union was certi-
fied as the collective-bargaining representative of
the employees in said unit on May 18, 1979, and
the Union continues to be such exclusive repre-
sentative within the meaning of Section 9(a) of the
Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about June 21, 1979, and at
all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about February 18, 1980, and con-
tinuing at all times thereafter to date, Respondent
has refused, and continues to refuse, to recognize
and bargain with the Union as the exclusive repre-
sentative for collective bargaining of all employees
in said unit.
Accordingly, we find that Respondent has, since
February 18, 1980, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respond-
ent 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 activities of Respondent set forth in section
III, above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in
and is engaging 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 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 ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate unit. See Mar-Jac Poultry Company. Inc..
136 NLRB 785 (1962); Commerce Company d/b/a
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
I. Maine Caterers, Inc., and W. H. Maine, Inc.,
is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Brotherhood of Industrial Caterers is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All non salaried driver-salesmen employed by
Maine Caterers, Inc., and W. H. Maine, Inc., at its
Warwick, Rhode Island, location, but excluding all
salaried driver-salesmen, all other employees, office
clerical employees, professional employees, guards
and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the
Act.
4. Since May 18, 1979, the above-named labor
organization has been and now is the certified and
exclusive 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 February 18, 1980,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Re-
spondent 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, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(l) 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.
5... I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Maine Caterers, Inc., and W. H. Maine, Inc., War-
wick, Rhode Island, 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
conditions of employment with Brotherhood of In-
dustrial Caterers as the exclusive bargaining repre-
sentative of its employees in the following appro-
priate unit:
All nonsalaried driver-salesmen employed by
Maine Caterers, Inc., and W. H. Maine, Inc.,
at its Warwick, Rhode Island, location, but ex-
cluding all salaried driver-salesmen, all other
employees, office clerical employees, profes-
sional employees, guards and supervisors as
defined in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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 understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at 125 Kilvert Street, Warwick, Rhode
Island, copies of the attached notice marked "Ap-
pendix." 4 Copies of said notice, on forms provided
by the Regional Director for Region 1, after being
duly signed by Respondent's representative, shall
4 In the es'ent that this Order is enforced by a Judgment of a United
States Curt of Appeals. the words in the notice reading "Posted by
)rder of the National Labor Relations Board" shall read "Posted Pursu-
anlt to a Judgment f the United States Court of Appeals Enforcing an
Order of the National Relations Board."
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 Re-
spondent 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.
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
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with Brotherhood of Industrial Caterers as the
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 employ-
ees 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 repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All nonsalaried driver-salesmen employed at
our Warwick, Rhode Island, location, but
excluding all salaried driver-salesmen, all
other employees, office clerical employees,
professional employees, guards and supervi-
sors as defined in the Act.
MAINE CATERERS, INC. AND W. H.
MAINE, INC.