Atlas Hotels, Inc.

ATLAS HOTELS, INC. 331 Atlas Hotels, Inc. and Bakery and Confectionery Workers International Union of America , Local No. 315. Case 21-CA-11635 August 8, 1973 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: DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY Upon a charge filed on March 16, 1973, by Bakery and Confectionery Workers International Union of America, Local No. 315, herein called the Union, and duly served on Atlas Hotels, Inc., herein called the Respondent, the General Counsel of the National La- bor Relations Board, by the Regional Director for Region 21, issued a complaint on April 11, 1973, 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 February 14, 1973, following a Board election in Case 21-RC-12890 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 March 12, 1973, and at all times thereaf- ter, 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 April 23, 1973, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On May 21, 1973, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on May 15, 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 should not be granted. Respondent thereafter filed a response to Notice To Show Cause, entitled Opposition to Motion for Summary Judgment. 'Official notice is taken of the record in the representation proceeding, Case 21-RC-12890 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 Electrosystems, 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 for Summary Judgment In its answer to the complaint and response to the Notice To Show Cause, the Respondent opposes the General Counsel's Motion for Summary Judgment denying the appropriateness of the unit and conse- quently attacking the Union's status as the exclusive bargaining representative of the employees in the ap- propriate unit. The General Counsel on the other hand contends that the Respondent is thereby at- tempting to relitigate the issues raised and determined in the underlying representation case and this it may not do. We agree with the General Counsel. Our review of the record reflects that, at the hearing in Case 21-RC-12890, the unit issue was fully litigat- ed by the parties. In his Decision and Direction of Election of November 7, 1972, the Regional Director found appropriate the unit of bakery and bakery sani- tation employees at the Respondent's San Diego Town and Country Hotel sought by the Union rather than a unit of all production and maintenance em- ployees at the Respondent's five San Diego hotels, urged by the Respondent. The Respondent thereupon filed with the Board a timely request for review con- tending (1) that the Regional Director's unit was based upon a Board precedent overruled by the Unit- ed States court of appeals and represented a depar- ture from officially reported precedent and (2) that the Regional Director's decision on three substantial factual issues was clearly erroneous on the record. On December 7, 1972, the Board denied the Respondent's request as it raised no substantial issues warranting review. Thereafter, on January 5, 1973, an election was conducted in which, of the approximately eight eligi- ble voters, three cast ballots for, and three against, the Union, with two ballots challenged. Since the two challenged ballots were sufficient to affect the results of the election, they were investigated by the Acting Regional Director. Pursuant to his investigation and the stipulation of the parties, the Acting Regional Director, on February 1, 1973, issued his Supplemen- tal Decision and Order in which he sustained the chal- lenge to one ballot and overruled the challenge to the other ballot, which he directed to be opened and counted. As the revised tally of ballots indicated that the Union had won the election by a vote of four to three, the Acting Regional Director certified the 205 NLRB No. 47 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union on February 14, 1973. It is well settled that in the absence of newly discov- ered or previously unavailable evidence or special cir- cumstances 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 the Respondent in this proceed- ing 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 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 the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. In its response, the Respondent also opposes the General Counsel's Motion for Summary Judgment on jurisdictional grounds, contending that the denials in its answer raise a substantial question of fact involv- ing interstate commerce. More specifically, the Re- spondent denies the allegations (a) that it is an employer in commerce, (b) that its acts and conduct in connection with its business operations have a close, intimate, and substantial relation to interstate commerce, tending to lead, and leading to, labor dis- putes burdening interstate commerce, and (c) that the Respondent's acts constitute unfair labor practices affecting commerce. It argues, therefore, that the General Counsel has to prove by competent evidence these denied allegations of the complaint and that it would show at an evidentiary hearing that the total activity of the seven unit employees would have no effect on commerce. We disagree with the Respondent's position. The Respondent's answer ad- mits, as alleged in the complaint, that it has gross revenues from its nonresidential hotel operations in excess of $500,000 and that annually it purchases and receives at its San Diego, California, hotels goods and supplies valued in excess of $50,000 directly from out- side California. These admitted commerce data are sufficient to establish, and we find to be established, the aforesaid denied allegations of the complaint, un- der the principles set forth in the Supreme Court's 2 See Pittsburgh Plate Glass Co v NLRB, 313 U S 146, 162 (1941 ), Rules and Regulations of the Board, Secs 102 67(f) and 102 69(c) 3 N L R B v Reliance Fuel Oil Corp, 371 U S 224 ( 1963) The Supreme Court stated at 226-227 decision in Reliance Fuel where the Court disposed of similar jurisdictional arguments in finding that the Board had properly asserted jurisdiction over the em- ployer therein? We therefore find no merit in the Respondent's jurisdictional contentions. We shall, ac- cordingly, 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 THE RESPONDENT Respondent, a Delaware corporation, is engaged in the business of operating nonresidential hotels in the States of California and Arizona, with five such hotels located in the San Diego, California, area. In the normal course and conduct of its business the Respondent annually derives gross revenues in excess of $500,000 and annually purchases and receives at its hotels located in the San Diego, California, area goods and supplies valued in excess of $50,000 direct- ly from suppliers located outside the State of Califor- nia. 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 Bakery and Confectionery Workers International Union of America, Local No. 315, is a labor organiza- tion within the meaning of Section 2(5) of the Act. The Act establishes a framework within which the Board is to determine "whether proscribed practices would in particular situations adversely affect commerce when judged by the full reach of the constitutional power of Congress Whether or no practices may be deemed by Con- gress to affect interstate commerce is not to be determined by confining judgment to the quantitative effect of the activities immediately before the Board Appropriate for judgment is the fact that the immediate situation is representative of many others throughout the country, the total incidence of which if left unchecked may well become far-reaching in its harm to commerce" Polish Alliance v Labor Board, 322 U S at 648 See also Labor Board v Fainblatt, 306 U S , at 607-608 That activities such as those of Reliance affect commerce and are within the constitutional reach of Congress is beyond doubt . See, e g., Wickard v Filburn, 317 U S II I Through the National Labor Relations Act " Congress has explicitly regulated not merely transactions or goods in interstate commerce but activities which in isolation might be deemed to be merely local but in the interfacings of business across state lines adversely affect such commerce " Polish Alliance v Labor Board, 322 US,at648. See also Bob's Casing Crews, Inc, 178 NLRB 3, 4 ATLAS HOTELS, INC. 333 III THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit 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. 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 bakery and bakery sanitation employees employed by the Employer at its Town and Country Hotel bakery, San Diego, California, ex- cluding all other employees, guards, professional employees, and supervisors as defined in the Act. 2. The certification On January 5, 1973, 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 21, 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 February 14, 1973, 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 February 26, 1973, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about March 12, 1973, 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 March 26, 1973, 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, 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 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 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. Atlas Hotels, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Bakery and Confectionery Workers Internation- al Union of America, Local No. 315, is a labor organi- zation within the meaning of Section 2(5) of the Act. 3. All bakery and bakery sanitation employees em- ployed by the Employer at its Town and Country Hotel bakery, San Diego, California, excluding all other employees, guards, professional employees, and 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 February 14, 1973, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about March 12, 1973, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. 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, Atlas Hotels, Inc., San Diego, California, 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 Bakery and Confectionery Workers International Union of America, Local No. 315, as the exclusive bargaining representative of its employees in the following appropriate unit: All bakery and bakery sanitation employees employed by the Employer at its Town and Country Hotel bakery, San Diego, California, ex- cluding all other employees, guards, professional employees, 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 Town and Country Hotel, San Die- go, California, copies of the attached notice marked "Appendix." ° Copies of said notice, on forms provid- ed by the Regional Director for Region 21, 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, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 21, 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 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 Bak- ery and Confectionery Workers International Union of America, Local No. 315, as the exclu- sive representative of the employees in the bar- gaining 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 bakery and bakery sanitation employees employed by the Employer at its Town and Country Hotel bakery, San Diego, California, excluding all other employees, guards, profes- sional employees, and supervisors as defined in the Act. ATLAS HOTELS, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. ATLAS HOTELS, INC. 335 This notice must remain posted for 60 consecutive ance with its provisions may be directed to the days from the date of posting and must not be altered, Board's Office, Eastern Columbia Building, 849 defaced, or covered by any other material. South Broadway, Los Angeles, California 90014, Any questions concerning this notice or compli- Telephone 213-688-5200.