Thunderbird Hotel Co.

362 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD (b) Post in conspicuous places as its ' places ' of- business in Steubenville and East Liverpool, Ohio, including all places' . where notices to, employees customarily are posted, copies of the attached notice - marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director , Region •8, shall; after being signed by the Respondent's representative, be posted by it immediately upon receipt thereof, and maintained by it for at least 60 consecutive days there. after. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any material.' (c) Notify said Regional Director in writing within 20 days from the receipt of this Decision what steps the Respondent has taken to comply herewith.3 2 If this Recommended Order should be adopted by the Board , the words "as ordered by" shall be substituted for "as Recommended by a Trial Examiner of" in the notice In the further event that the Board 's Order be enforced by a United States Court of Appeals, the words "a Decree of a United States Court of Appeals , Enforcing an Order of" shall be inserted immediately following "as ordered by " If this Recommended Order should be adopted by the Board , this provision shall be modified to read: "Notify said Regional Director , in writing, within 10 days from the date of this Order , what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES As recommended by a Trial Examiner of the National Labor Relations Board we are posting this notice to inform our employees of rights guaranteed to them by the National Labor Relations Act: WE WILL, upon request, bargain collectively with Insurance Workers In- ternational Union, AFL-CIO, as the exclusive representative of all employees in the following bargaining unit: All debit insurance agents employed at or working out of our district office in Steubenville, Ohio, including the detached office in East Liver- pool, Ohio, but excluding office clerical employees , canvassers , canvass- ing agents, collectors, regular ordinary agents, guards , district managers, associate district managers, staff managers, and all other supervisors as defined in the Act. WE WILL NOT interfere with the efforts of Insurance Workers International Union, AFL-CIO, to negotiate for or represent the employees in the bar- gaining unit as the exclusive representative. EQUITABLE LIFE INSURANCE COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any material. If the employees have any questions concerning this notice or whether the Employer is complying with its provisions , they may communicate with the Board's Regional Office, 720 Bulkley Building, 1501 Euclid Avenue , Cleveland, Ohio, Telephone No. Maine 1-4465. Thunderbird Hotel, Inc., and Joe Wells, James Schuyler and William Deer, Co-partners, d/b/a Thunderbird Hotel Company and Independent Guards Association of Nevada , Local No. 1. Case No. 20-CA-2973. October 30, 1964 DECISION AND ORDER On August 4, 1964, Trial Examiner Louis S. Penfield.issued his Decision in the above-entitled proceeding, finding that Respondent 149 NLRB No. 39. :THUNDERBIRD HOTEL; INC., ETC. 363 had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist-therefrom and take'certaili affirmative action, as set forth in the attached Decision. Thereafter, Respondent filed exceptions to the Decision and a supporting brief; General Counsel filed an answering brief.' Pursuant, to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Mem- bers Fanning and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. ORDER Pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the Board hereby adopts as its Order the Order recom- mended by the Trial Examiner, and orders that the Respondent, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. 'Respondent's request for oral argument is hereby denied as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding, with all parties appearing but the Charging Party, was heard before Trial Examiner Louis S. Penfield in San Francisco , California, on May 26, 1964 , on a complaint of the General Counsel and an answer of Thunder- bird Hotel, Inc., a corporation, and Joe Wells, James Schuyler, and William Deer, co-partners, d/b/a Thunderbird Hotel Company, a partnership . The corporation and the partnership together will be herein called Respondent . The issues liti- gated were whether Respondent violated Section 8(a)(1) and (5) of the National Labor Relations Act, as amended, herein called the Act.' The complaint is based upon an allegation of refusal to bargain by Respond- ent following Board certification of Independent Guards Association of Nevada, Local No. 1, herein called the Union. The answer admits the fact of refusal to bargain, but urges its lawful character because of the alleged invalidity of the certification. At the outset the General Counsel moved to amend his complaint to include new matters allegedly affecting anticipated legal defenses of Respondent. The motion was opposed by Respondent , and, after hearing extended argument, de- nied by me. Near the close of the hearing the General Counsel , in effect, renewed his motion to amend. In his brief the General Counsel indicates that he is no longer pressing such motion . In view of this, no purpose will be served in setting forth or examining the reasoning behind the original ruling, and the renewed motion is hereby denied. The complaint issued on February 26, 1964, based on a charge filed with the National Labor Relations Board, herein called the Board , on February 7, 1964 Copies of the com- plaint and charge have been duly served upon Respondent. 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record , including consideration of briefs filed by the General Counsel and Respondent , I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Thunderbird Hotel , Inc., herein called the Corporation, is a Nevada corporation with its main office and principal place of business in Winchester , Clark County, Nevada, where it is engaged in the business of operating a hotel . Joe Wells, James Schuyler, and William Deer, co-partners , d/b/a Thunderbird Hotel Com- pany, herein called the Partnership , have their main office and principal place of business in Winchester, Clark County, Nevada, where they are engaged in the business of operating a gambling casino and bars and restaurants in hotel space leased from the Corporation . The Corporation, in the course . and conduct of its business, annually receives gross revenue in excess of $500,000, and less than 75 percent of the guests in the Thunderbird Hotel remains for 1 month or more. The Partnership, in the course and conduct of its business operations, an- nually receives gross revenue in excess of $500,000 . The Corporation and the Partnership, in the course and conduct of their businesses , each annually pur- chases and receives goods valued in excess of $50,000 from enterprises located in the State of Nevada, which in turn receive said goods directly from points outside the State of Nevada. The foregoing facts, which are not denied by Respondent, clearly establish, and I find, that the Corporation and the Partnership each meets the discretionary standards for the assertion of jurisdiction over hotels and restaurants.2 Respondent, however, denies the allegation that the Corporation and the Part- nership constitute a single integrated employer whose operations affect commerce within the meaning of the Act, and that it is engaged in a type of business over which the Board should assert jurisdiction as a matter of policy. To establish these facts the General Counsel relies upon the Board's prior finding in a repre- sentation proceeding involving Respondent .3 Respondent does not dispute the factual basis for the Board's Decision in the representation proceeding , but chal- lenges the validity of its conclusions. For reasons that will be set forth below, I regard myself as bound by the Board 's Decision in the representation proceeding, and therefore I find that the Corporation and the Partnership together constitute a single employer over whose business the Board will assert jurisdiction. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The representation proceeding The Union filed a petition in a representation proceeding known as Case No. 20-RC-5294 seeking to represent persons working as security guards and timekeepers in Respondent 's gambling casino and hotel. A hearing was held and subsequently the Board issued its Decision and Direction of Election. Pursuant thereto an election was conducted , and on October 16, 1963, the Union was certified as the statutory representative of Respondent 's employees. At the representation hearing Respondent urged that the Corporation and the Partnership were not a single employer , that the operation of a gambling casino was not in the flow of commerce , and that as a matter of policy the Board should not assert jurisdiction over a gambling casino. These issues were fully litigated, and the Board in its Decision resolved them contrary to the contentions of Re- spondent, holding that the Corporation and the Partnership constituted a single employer, and that the operations justified the assertion of jurisdiction as a matter of both law and policy. At the hearing Respondent also urged that the Board should not find a unit comprised of security guards and timekeepers to be appro- 2 Floridan Hotel of Tampa, Inc., 124 NLRB 261; Colonial Catering Company, 137 NLRB 1607. 3 Thunderbird Hotel, Inc. and Joe Wells, James Schuyler and William Deer, Co- partners, d/b/a Thunderbird Hotel Company , 144 NLRB 84, In which the Decision and Direction of Election was issued on August 20, 1963. THUNDERBIRD HOTEL, INC., ETC. 365 priate because security guards were properly employees of the sheriff of Clark County, and not employees of Respondent . The relationship of Respondent and the sheriff to each other and to the security guards was a principal issue, and was fully litigated in the representation proceeding . The Board found that "in view of the [Respondent's] control over their hiring, assignment of jobs, wages, hours, and conditions of employment . the security guards are employees of the [Respondent]." The Board thereafter found the appropriate unit to be as follows: All employees at the employer's Winchester, Clark County, Nevada, opera- tions employed as security guards and timekeepers , but excluding all other employees , clockmen or fire watchers, office clerical employees, professional employees, and supervisors as defined in the Act. The subsequent election and certification covered employees in the foregoing unit. B. The refusal to bargain The General Counsel called no witnesses but relied on the prior Board certifica- tion and Respondent's admitted refusal to bargain. Respondent defends its ac- tion by claiming that (1) the Board erred in asserting jurisdiction , and (2) the Board erred by including security guards in the appropriate unit when actually they were employees of the sheriff and not of Respondent . Respondent does not dispute that both issues were litigated in the representation case. It offered no additional evidence regarding the jurisdiction issue, but proffered evidence on the unit issue alleging such evidence to be newly discovered or unavailable to it at the representation hearing. It is well settled that issues raised and determined in an earlier representation case may not be relitigated in a complaint proceeding , and that a Trial Examiner is bound by the Board's earlier unit determination and the ensuing certification. Pittsburgh Plate Glass Company v . N.L.R.B ., 313 U.S. 146, 157-158; N.L.R.B. v. Botany Worsted Mills, 133 F. 2d 876, 882 (C.A. 3); N L R.B. v. West Ken- tucky Coal Company, 152 F. 2d 198, 200-201 (C.A. 6 ); Quaker City Life Insur- ance Company , 138 NLRB 61; Air Control Products of St . Petersburg Inc., 139 NLRB 413; Esquire Inc., 109 NLRB 530; Metropolitan Life Insurance Company, 146 NLRB 1577 . This rule, however , does not apply to evidence newly discov- ered or unavailable at the representation hearing. Since Respondent makes no claim of this nature regarding the jurisdiction issue, I am bound by the Board's determination on it , and I have so found above. The proffered evidence on the unit issue, must be considered further to determine if it falls within the exception. Respondent called no witnesses but it offered in evidence portions of the testi- mony of seven witnesses given in another unfair labor 'practice proceed- ing.4 The testimony given by these witnesses in the other proceeding is alleged to be relevant to the unit issues in the instant case, and to be admissible as newly discovered or unavailable evidence . The General Counsel resisted the introduc- tion of this proffered evidence on three grounds that ( 1) it was not newly discovered or unavailable, (2) it was not relevant to the issues in the instant case, and (3 ) in the form offered it was hearsay. Respondent had made known its intention to offer this testimony at a pretrial conference , and before the hearing I undertook to examine the portions of the official transcript which it sought to use, as well as the transcript in the representation proceeding. At the hearing the offer was made, and after listening to extended argument on the record from both counsel for Respondent and for the General Counsel, I ruled that the testi- mony did not appear newly discovered or unavailable, and that its relevancy, in some respects at least , appeared dubious. I thereupon refused to receive it into the record . Respondent then submitted it in the form of an offer of proof. This was rejected but Respondent was permitted to put the testimony of the seven witnesses into the record in the form of rejected exhibits . Respondent urges that 4 This proceeding is entitled "Thunderbird Hotel Inc ; Joe Wells, James Schuyler and William Deer, Co-partners , d/b/a Thunderbird Hotel Company ; and Ralph Lamb , Sheriff, Claik County , State of Nevada, Case No. 20-CA-2521 In this case the General Counsel issued a complaint on September 10, 1963, alleging violations of Section 8(a) (1) and (3) of the Act by Respondent and by Sheriff Lamb A hearing was held on the issues by a Trial Examiner on October 30 and 31 , 1963 , at which the seven witnesses , among others, testified On June 5 , 1964 , a Trial Examiner 's Decision was issued in this proceeding find- ing violations substantially as alleged , and recommending an appropriate order. 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I reconsider my ruling, and receive the testimony of these witnesses as a whole, or at least that I receive certain portions of their testimony which it designates in its brief and urges as both relevant and newly discovered or unavailable evidence. Two of the seven witnesses were Hall C. Feeney and Donn Ronnow, union officials. Feeney testified in the representation proceeding . Ronnow did not, but his testimony is no more than corroborative of Feeney's, and no showing is made that he was unavailable at the time. Two other witnesses , Thomas Cran- ford and Joseph De Saro, were both security guards at Respondent 's establish- ment at the time of the representation hearing. Cranford testified at the repre- sentation hearing, and is the alleged discriminatee in the unfair labor practice proceeding. De Saro did not testify in the representation proceeding but no showing is made as to his unavailability . Witness Hiram Powell is a lieutenant on the sheriff's staff. He did not testify in the representation proceeding. There is no showing as to his unavailability and his superior , Undersheriff Bunker, did give testimony at that time. Witness Jack Walsh is Respondent 's general man- ager, and witness Thomas Bellis was the chief special deputy in charge of security guards at Respondent's establishment at the time of the representation hearing. Both testified at that time . I have reexamined the testimony of each of these witnesses , especially those portions which Respondent designates as hav- ing special significance . I have considered Respondent 's arguments both as to relevancy and as to the status of such testimony as newly discovered or unavail- able evidence . Without commenting upon the weight properly to be attached to it, I agree with Respondent that at least the specially designated portions have some relevancy with respect to the unit issue. Thus each witness gave testimony as to aspects of the relationship among the sheriff, Respondent, and the security guards. The position and knowledge of each is such that his testimony would have merited consideration if it were directed at the unit issue de novo, or possibly if it were permitted to supplement the representation record. However, it was this very relationship that was the central unit issue in the representation case. Four of the seven had actually testified on this very subject, and the other three were available to do so if Respondent had sought to call them . I find no merit in the claim that the testimony proffered covered evidence which may be properly regarded as either newly discovered or otherwise unavailable at the representation hearing. That Respondent as an afterthought feels that their later testimony since it might have affected the outcome had it been presented then . The unit issue at that time , however, was far from obscure , and Respondent was afforded full opportunity to meet it and in fact participated in extensive litigation on that very subject. The purpose of forbidding relitigation is to put to rest an issue once a litigant has been afforded full opportunity to meet it . It is not intended that a litigant be given a second chance after the hindsight of an adverse decision has convinced him that he might now present the issue more effective- ly. There is no showing that any of the evidence offered was for any reason unavailable . It is obvious that with the exercise of reasonable diligence all of the testimony developed through the same or other witnesses at the representation hearing. That Respondent as an afterthought feel that their later testimony might better support its unit argument is not enough to accord it status as newly discovered evidence . Accordingly I reaffirm my ruling at the hearing and reject the proffered evidence as not falling within the newly discovered or unavailable evidence exception.5 I find, therefore, that the certification is binding on me, and as dispositive of the issues in this proceeding . Accordingly, I find that the unit found by the Board to be appropriate in the representation proceeding is a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act, that at all times since October 18, 1963, the Union has represented a majority of the employees of such unit, and that at all times since December 13, 1963, Respondent has declined to recognize and bargain with the Union as the statu- tory representative of employees in such unit , and thereby has engaged in con- duct violative of Section 8(a)(5) and 8 (a) (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent as set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a 5 In view of the ruling I do not reach , and therefore do not pass upon, the General Counsel's further contention that the evidence in the form presented was hearsay. THUNDERBIRD HOTEL, INC., ETC. 367 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. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices violative of Section 8 (a) (5) and 8 (a) (1) of the Act, I shall recommend below that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in this proceeding I make the following: CONCLUSIONS OF LAW 1. Respondent, Thunderbird Hotel, Inc.; and Joe Wells, James Schuyler and William Deer, co-partners, d/b/a Thunderbird Hotel Company, is, and has been at all times material herein , a single integrated employer engaged in commerce and in operations affecting commerce within the meaning of Section 2 (2), (6), and (7) of the Act. 2. Independent Guards Association of Nevada, Local No. 1, is, and has been at all material times, a labor organization within the meaning of Section 2(5) of the Act. 3. All employees at Respondent's Winchester, Clark County, Nevada, opera- tions employed as security guards and timekeepers , but excluding all other em- ployees, clockmen, or fire watchers, office clerical employees, professional em- ployees, and supervisors as defined by the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Union has been at all times since October 16, 1963, and now is, the exclusive representative of the employees in the aforesaid unit within the meaning of Section 9(a) of the Act. 5. Since on or about December 16, 1963, by refusing to bargain collectively with the Union as the representative of employees in the above unit. Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (5) and 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that Respondent, Thunderbird Hotel, Inc.; and Joe Wells, James Schuyler and William Deer, co-partners, d/b/a Thunderbird Hotel Company, their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with the Union as the exclusive represent- ative of its employees in the unit described above. (b) In any manner interfering with the effort of the Union to bargain collec- tively with Respondent on behalf of the employees in the above -described unit. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act. (a) Upon request bargain collectively with the above-named Union as the exclusive representative of all employees in the unit herein found to be appro- priate with regard to wages, hours, and other terms and conditions of employment. (b) Post in conspicuous places-at its usual place of business , including all places where notices to employees are customarily posted, copies of the attached notice marked "Appendix A." 6 Copies of said notice to be furnished by the Regional Director for Region 20 of the National Labor Relations Board , shall, after being signed by Respondent , be posted by it immediately upon receipt 8In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the additional event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereof and maintained by it for 60 consecutive days thereafter in such conspic- uous places. 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 20, in writing, within 20 days from the receipt by Respondent of a copy of this Decision, what steps it has taken to comply herewith.? It is further recommended that unless on or before 20 days from the receipt of this Decision and Recommended Order Respondent notify the Regional Director that he will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring Respondent to take the action aforesaid. 7 In the event that this Recommended Order be adopted by the Board paragraph 2 (c) shall be modified to read: "Notify the Regional Director for Region 20, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with Independent Guards Association of Nevada, Local No. 1, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any manner interfere with the efforts of Independent Guards Association of Nevada, Local No. 1 to bargain collectively as the exclusive representative of the employees in the bargaining unit described below. WE WILL, upon request, bargain with Independent Guards Association of Nevada, Local No. 1, as the exclusive representative of all the employees in the bargaining unit described below with respect to rates of pay , wages, hours of employment, and other terms and conditions of employment. The bargaining unit is: All employees of Thunderbird Hotel, Inc.; and Joe Wells, James Schuyler, and William Deer co-partners, d/b/a Thunderbird Hotel Com- pany at the Winchester, Clark County, Nevada, operations of such em- ployers, employed as security guards and timekeepers, but excluding all other employees, clockmen or fire watchers, office clerical employees, professional employees, and supervisors as defined in the Act. THUNDERBIRD HOTEL INC.; AND JOE WELLS , JAMES SCHUYLER AND WILLIAM DEER, CO-PARTNERS, D/B/A THUNDERBIRD HOTEL COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) 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. Employees may communicate directly with the Board's Regional Office 450 Golden Gate Avenue, Room 13050, San Francisco, California Telephone No. 556-3197, if they have any questions concerning this notice or compliance with its provisions. Baltimore Paint and Chemical Corporation and Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO. Case No. 5-CA-2732. October 30, 1964 DECISION AND ORDER On August 10, 1964, Trial Examiner Frederick U. Reel issued his Decision in the above-entitled proceeding, finding that the Respond- 149 NLRB No. 44.