Samurai/Kabuki Japanese Steak House

National Labor Relations Board - Board Decisions

May 2, 1977

229 N.L.R.B. 404 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Samurai, Inc., d/b/a The Samurai/Kabuki
Japanese Steak House and Hotel, Motel, Restau-
rant Employees and Bartenders Local 12, Hotel
and Restaurant Employees and Bartenders Inter-
national Union, AFLCIO. Case 9-CA-10656
May 2, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
Upon a charge filed on September 22, 1976, by
Hotel, Motel, Restaurant Employees and Bartenders
Local 12, Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO, herein
called the Union, and duly served on The Samurai,
Inc., d/b/a The Samurai/Kabuki Japanese Steak
House, herein called Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 9, issued a
complaint and notice of hearing on November 8,
1976, 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
National 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
complaint alleges in substance that on May 19, 1976,
following a Board election in Case 9-RC-10905, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; 1 and that, commenc-
ing on or about September 21, 1976, and at all times
thereafter, 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 November 12, 1976, Respondent filed its answer
to the complaint admitting in part, and denying in
part, the allegations in the complaint. Respondent
admitted that it has refused upon request to bargain
collectively with the Union since September 21, 1976.
Respondent denied the conclusory 8(a)(l) and (5)
allegations and asserted that the Union was improp-
erly certified and that, furthermore, Respondent is
not a successor and is not bound by the certification
On January 4, 1977, counsel for the General
Counsel filed directly with the Board a Motion for
t Official notice is taken of the record in the representation proceeding,
Case 9-RC-10905, 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 Electrosyslems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4,
229 NLRB No. 62
Summary Judgment. Subsequently, on January 18,
1977, 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 should not be granted. Respon-
dent thereafter filed a response to Notice To Show
Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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 its response to
Notice To Show Cause, Respondent denies that it is
a successor and therefore asserts that it has no
obligation to bargain with the Union. Respondent
also attacks the Union's certification, arguing that
preelection conduct rendered it improper.
Review of the record reveals that, pursuant to a
Decision and Direction of Election in Case 9-RC-
10905, an election was held on May 2, 1975, and was
won by the Union. Respondent's predecessor, Eura-
sian Enterprises, Inc., filed objections on May 7,
1975, and the Hearing Officer's Report and Recom-
mendations issued October 21, 1975, a Second
Supplemental Decision, Order and Notice of Further
Hearing was issued by the Regional Director on
November 18, 1975, and a Third Supplemental
Decision, Order and Notice of Further Hearing was
issued by the Regional Director on January 22, 1976.
The Hearing Officer's Supplemental Report and
Recommendations issued on March 31, 1976, while
the Fourth Supplemental Decision and Certification
of Representative was issued by the Regional
Director on May 19, 1976. Respondent's request for
review of the Fourth Supplemental Decision was
denied on July 20, 1976.
Following a request by the Union on or about
August 16, 1976, that Respondent bargain collective-
ly in good faith with respect to rates of pay, wages,
hours of employment, and other terms and condi-
tions of employment, Respondent refused to recog-
nize and bargain with the Union as the exclusive
collective-bargaining representative of its employees
in the certified unit. Respondent has refused to
bargain with the Union since September 21, 1976.
In response to a Motion for Summary Judgment,
an adverse party may not rest upon denials in its
pleadings, but must present specific facts which
1968): Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967);
Foilett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA, as amended.
404
THE SAMURAI, INC.
demonstrate that there are material facts in issue
which require a hearing. 2 Respondent in the instant
case presented no material facts not admitted or
previously determined.
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
litigated in a prior representation proceeding.3
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior
representation proceeding, and Respondent does not
offer to adduce at a hearing any newly discovered 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.4 We there-
fore find that Respondent has not raised any issue
which is properly litigable in this unfair labor
practice proceeding. We shall, accordingly, 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
Respondent, a Pennsylvania corporation, is en-
gaged in the retail restaurant business at its Cincin-
nati, Ohio, location, the only location involved
herein. During the past 12 months, which is a
representative period, Respondent had a gross
volume of sales in excess of $500,000. During that
same period, Respondent had a direct inflow of
goods, in interstate commerce, valued in excess of
$25,000 which it purchased and caused to be shipped
from points located outside the State of Ohio directly
to its Cincinnati, Ohio, location.
We find, on the basis of the foregoing, that
Respondent 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 INVOLVED
Hotel, Motel, Restaurant Employees and Barten-
ders Local 12, Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO, is a
2 Western Electric Company, Hawthorne Works, 198 NLRB 623 (1972).
3 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Seecs. 102.67(1) and 102.69(c).
4 Respondent's contention that there exists newly discovered evidence is
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 Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act.
All regular full-time and regular part-time barten-
ders, waiters, waitresses, bus help, cashiers, cooks
(chefs), kitchen helpers, pantry employees, dish-
washers and maitre d's employed by Respondent
at its restaurant and bar located at 126 East Sixth
Street, Cincinnati, Ohio, excluding all office
clerical employees, casual employees, the hat and
coat check employee, and all professional em-
ployees, guards and the general manager, assis-
tant managers, the bar and cocktail lounge
manager (head bartender), the head chef and all
other supervisors as defined in the Act.
2. The certification
On May 2, 1975, 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 9, designated the Union as their
representative for the purpose of collective bargain-
ing with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on May 19, 1976, and the Union
continues to be such exclusive representative within
the meaning of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about August 16, 1976, and at
all times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
or about September 21, 1976, and continuing at all
times thereafter to date, Respondent has refused, and
continues to refuse, to recognize and bargain with the
Union as the exclusive representative for collective
bargaining of all employees in said unit.
Accordingly, we find that Respondent has, since
September 21, 1976, and at all times thereafter,
refused to bargain collectively with the Union as the
without merit. All the evidence referred to in Respondent's opposition to the
General Counsel's Motion for Summary Judgment had been raised in the
request for review and was duly considered by the Board.
405
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exclusive representative of the employees in the
appropriate unit, and that, by such refusal, Respon-
dent 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 opera-
tions described in section I, above, have a close,
intimate, and substantial relationship 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 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
appropriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate 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
(C.A. 5, 1964), cert. denied 379 U.S. 817 (1964);
Burnett Construction Company, 149 NLRB 1419, 1421
(1964), 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. The Samurai, Inc., d/b/a The Samu-
rai/Kabuki Japanese Steak House, is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Hotel, Motel, Restaurant Employees and
Bartenders Local 12, Hotel and Restaurant Employ-
ees and Bartenders International Union, AFL-CIO,
is a labor organization within the meaning of Section
2(5) of the Act.
3. All regular full-time and regular part-time
bartenders, waiters, waitresses, bus help, cashiers,
cooks (chefs), kitchen helpers, pantry employees,
dishwashers and maitre d's employed by Respondent
at its restaurant and bar located at 126 East Sixth
Street, Cincinnati, Ohio, excluding all office clerical
employees, casual employees, the hat and coat check
employee, and all professional employees, guards
and the general manager, assistant managers, the bar
and cocktail lounge manager (head bartender), the
head chef and all other 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 May 19, 1976, 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 September 21, 1976,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the
exclusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Respon-
dent 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, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees 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
meaning 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
Relations Board hereby orders that the Respondent,
The Samurai, Inc., d/b/a The Samurai/Kabuki
Japanese Steak House, Cincinnati, Ohio, 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 Hotel, Motel, Res-
taurant Employees and Bartenders Local 12, Hotel
and Restaurant Employees and Bartenders Interna-
tional Union, AFL-CIO, as the exclusive bargaining
representative of its employees in the following
appropriate unit:
All regular full-time and regular part-time barten-
ders, waiters, waitresses, bus help, cashiers, cooks
406
THE SAMURAI, INC.
(chefs), kitchen helpers, pantry employees, dish-
washers and maitre d's employed by Respondent
at its restaurant and bar located at 126 East Sixth
Street, Cincinnati, Ohio, excluding all office
clerical employees, casual employees, the hat and
coat check employee, and all professional em-
ployees, guards and the general manager, assis-
tant managers, the bar and cocktail lounge
manager (head bartender), the head chef and all
other 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 126 East Sixth Street, Cincinnati, Ohio,
copies of the attached notice marked "Appendix." 5
Copies of said notice, on forms provided by the
Regional Director for Region 9, after being duly
signed by Respondent's representative, shall 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 Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 9, 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
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Hotel,
Motel, Restaurant Employees and Bartenders
Local 12, Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO, 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 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 representa-
tive 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 agree-
ment. The bargaining unit is:
All regular full-time and regular part-time
bartenders, waiters, waitresses, bus help,
cashiers, cooks (chefs), kitchen helpers,
pantry employees, dishwashers and maitre
d's employed by Respondent at its restau-
rant and bar located at 126 East Sixth Street,
Cincinnati, Ohio, excluding all office clerical
employees, casual employees, the hat and
coat check employee, and all professional
employees, guards and the general manager,
assistant managers, the bar and cocktail
lounge manager (head bartender), the head
chef and all other supervisors as defined in
the Act.
THE SAMURAI, INC.,
D/B/A THE
SAMURAI/KABUKI
JAPANESE STEAK HOUSE
407