Ogden Food Service Corporation, 360 (1983)

OGDEN FOOD SERVICE CORP.

Ogden Food Service Corporation and Bakery, Confectionery & Tobacco Workers International Union, AFL-CIO, Baker's Local No. 118. Case 5-CA- 14643

March 7, 1983 DECISION AND ORDER

BY CHAIRMAN MILLER AND MEMBERS

JENKINS AND HUNTER

Upon a charge filed on August 25, 1982, by Bakery, Confectionery & Tobacco Workers International Union, AFL-CIO, Baker's Local No. 118, herein called the Union, and duly served on Ogden Food Service Corporation, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 5, issued a complaint on September 13, 1982, 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 and the 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 July 26, 1982, following a Board election in Case 5-RC11775, 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 August 17, 1982, 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 September 23, 1982, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint.

On September 27, 1982, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on October 4, 1982, 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. Respondent ' Official notice is taken of the record in the representation proceeding, Case 5-RC-11775, 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 Electrosysrtems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir. 1968);Golden 4ge Beverage Co., 167 NLRB 151 (1967), enfd. 415

F.2d 26 (5th Cir 1969); Intertype Co. s. Penello, 269 F.Supp 573 (D.C.Va. 1967); Follerl Corp.. 164 NLRB 378 (1967), enfd 397 F2d 91 (7th Cir. 1968). Sec. 9(d) of the NLRA, as amended.

266 NLRB No. 68 thereafter filed a response to the 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 in its response to the Notice To Show Cause, Respondent essentially denies the validity of the Union's certification and asserts it is not required to recognize and/or bargain with the Union. Respondent contends that the Board should have dismissed the petition in Case 5-RC-11775 on the jurisdictional ground that Prince George's County exercises such control over employment conditions that Respondent could not engage in meaningful collective bargaining.

The General Counsel submits that Respondent is improperly seeking to litigate issues which were raised and determined in the representation case.

We agree.

Review of the record herein reveals that the Union on April 26, 1982, filed a petition in Case 5RC-11775 seeking an election in a unit of employees employed at Respondent's cafeteria and snack bar located in the Prince George's County Administration Building in Upper Marlboro, Maryland.

On June 4, 1982, the Regional Director issued a Decision and Direction of Election, finding, inter alia, that 'the Employer can effectively engage in collective bargaining, and it therefore does not share the County's exempt status.' No request for review of the Regional Director's decision was ever filed with the Board.

Pursuant to the Decision and Direction of Election, a secret-ballot election was held on July 9, 1982, which resulted in a tally of 9 votes for, and 3 against, the Union. On July 26, 1982, the Union was certified by the Regional Director as the exclusive representative of the employees in the appropriate unit.

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.2

All issues raised by Respondent in this proceeding were or could have been litigated in the prior 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).

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OGDEN FOOD SERVICE CORP, 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. We therefore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding.3

Accordingly, we grant the Motion for Summary Judgment.4

On the basis of the entire record, the Board makes the following:

FINDINGS OF FACT

1. THE BUSINESS OF RESPONDENT Respondent is a Delaware corporation with an office and place of business in Upper Marlboro,

   Maryland, where it is engaged in the business of providing cafeteria and vending machine services at the Prince George's County Administration Building. During the preceding 12 months, a representative period, Respondent, in the course and conduct of its business, derived gross revenues in excess of $500,000. During the same period, Respondent purchased and received products valued in excess of $50,000 directly from points outside the State of Maryland.

   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...