Carlton Hotel

232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carlton Hotel and Hotel-Motel-Restaurant Employ- ees and Bartenders Union , Local 86, Hotel and Res- taurant Employees and Bartenders International Union, AFL-CIO. Cases 20-CA-9803, 20-CA- 9853, 20-CA-9869, 20-CA-9897, and 20-CA- 9905 June 25, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS Upon charges initially filed by Hotel-Motel-Res- taurant Employees and Bartenders Union, Local 86, Hotel and Restaurant Employees and Bartenders In- ternational Union, AFL-CIO, herein called the Union, on December 16, 1974, and January 13, 16, 23, and 27, 1975, amended on various dates thereaf- ter,' and duly served on Carlton Hotel, herein called Respondent, the Acting General Counsel of the Na- tional Labor Relations Board, by the Regional Di- rector for Region 20, issued an amended consolidat- ed complaint and notice of hearing on September 22, 1975,2 alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce 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, com- plaint, and notice of hearing before an Administra- tive Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the amended consolidated complaint alleges in sub- stance that since 1959 the Union and Reno Em- ployers Council, herein the Council, a voluntary association of employers, on behalf of its employer-members, including Respondent, have been parties to a series of multiemployer collective- bargaining agreements, the most recent of which was effective from February 16, 1972, through February 15, 1975, and that, commencing on or about Decem- ber 13, 1974, Respondent has refused, and continues to refuse, to bargain collectively with the Union as the exclusive majority representative of the unit em- ployees at its Reno, Nevada, place of business, al- though the Union, which represents a majority in an appropriate unit of Respondent's employees, has re- quested and is requesting it to do so, and has with- drawn recognition from the Union as the exclusive bargaining agent. Respondent failed to file an an- swer. On April 7, 1976, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on April 14, 1976, 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 did not file a re- sponse to the Notice To Show Cause, so that the allegations of the Motion for Summary Judgment stand uncontroverted. 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 Section 102.20 of the Board's Rules and Regula- tions provides: The respondent shall, within 10 days from the service of the complaint, file an answer thereto. The respondent shall specifically admit, deny, or explain each of the facts alleged in the com- plaint, unless the respondent is without knowl- edge, in which case the respondent shall so state, such statement operating as a denial. All allega- tions in the complaint, if no answer is filed, or any allegation in the complaint not specifically denied or explained in an answer filed, unless the respondent shall state in the answer that he is without knowledge, shall be deemed to be ad- mitted to be true and shall be so found by the Board, unless good cause to the contrary is shown. 1 Amended charges in Case 20-CA-9803 were filed on December 18, 26, and 31, 1974, and on January 3 and 6, May 9, and June 2, 1975 First amended charges were filed in Cases 20-CA-9853, 20-CA-9869, and 20- CA-9897 on June 17, 1975 Amended charges were filed in Case 20-CA- 9905 on May 7 and June 25, 1975 2 On August 27, 1975, the Regional Director had issued a consolidated complaint in Cases 20-CA-9803, 9853, 9869, 9897, 9905, 10037, 10216, and 9957, alleging that Respondent herein had violated Sec 8(a)(5) and (1) and that other respondents had violated Sec 8(a)(1), (2), (3), and (5) Respon- dent herein did not file an answer to the consolidated complaint On Sep- tember 8, 1975, various respondents named in the consolidated complaint filed a motion to sever The Regional Director granted the motion to sever on September 18, 1975 The amended consolidated complaint and notice of hearing served on Respondent specifically stated that unless an answer to the complaint was filed within 10 days of service thereof "all of the allega- tions in the Amended Consolidated Complaint shall be deemed to be admitted to be true and may be so found by the Board." Further, according to the un- controverted allegations of the Motion for Summary Judgment, counsel for the General Counsel, by letter 225 NLRB No. 38 CARLTON HOTEL 233 dated February 2, 1976, and attached to the Motion for Summary Judgment, advised Respondent that an answer had not been received, requested that one be filed promptly, and stated that, if no answer were filed by February 13, 1976, she would move for sum- mary judgment. No answer was received. In view of Respondent's failure to answer, under the rule set forth above, no good cause having been shown for such failure, the allegations of the amend- ed consolidated complaint are deemed admitted and are found to be true. Accordingly, we shall grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT employees, guards and supervisors as defined in the Act. 2. The representative status of the Union Since 1959, the Union and Reno Employers Coun- cil, on behalf of its employer-members, including Re- spondent, have been parties to a series of multiem- ployer collective-bargaining agreements, the most recent of which was effective from February 16, 1972, through February 15, 1975. At all times materi- al herein, the Union has been the representative of a majority of the employees of Respondent in the unit described above, and, by virtue of Section 9(a) of the Act, has been, and now is, the exclusive representa- tive of all the employees in said unit. 1. THE BUSINESS OF THE RESPONDENT Respondent is a corporation engaged in the opera- tion of a restaurant, bar, and casino in Reno, Ne- vada. During the past calendar year, in the course and conduct of its business operations, Respondent received gross revenues in excess of $500,000 and purchased and received goods and materials valued in excess of $10,000 which originated outside the State of Nevada. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material here- in, 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 assertjuris- diction herein. II. THE LABOR ORGANIZATION INVOLVED Hotel-Motel-Restaurant Employees and Barten- ders Union, Local 86, 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. III. THE UNFAIR LABOR PRACTICES A. The 8(a)(5) and (1) Violations 1. The unit The following employees of Respondent constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act: All employees employed by Respondent Carlton in its bar and culinary operations at its Reno, Nevada, place of business, excluding all other B. The Request To Bargain and Respondent's Refusal Commencing on or about December 13, 1974, and continuing to date, the Union has requested, and is requesting, Respondent to bargain collectively con- cerning rates of pay, wages, hours of employment, and other terms and conditions of employment with the Union as the collective-bargaining representative of the employees in the above-described unit. Com- mencing on or about December 13, 1974, Respon- dent has refused and continues to refuse to bargain collectively with the Union, has withdrawn recogni- tion, and has refused and continued to refuse to rec- ognize the Union as the exclusive collective-bargain- ing representative of Respondent's employees in said unit. Accordingly, we find that, by its refusal to bargain collectively and to recognize the Union, since De- cember 13, 1974, and at all times thereafter, 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, inti- mate, 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 commerce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing of Section 8(a)(5) and ( 1) of the Act, we shall order that it cease and desist therefrom , and that it take certain affirmative action as set forth below de- signed to effectuate the purposes and policies of the Act. The Board, upon the basis of the foregoing facts and the entire record , makes the following: CONCLUSIONS OF LAW 1. Carlton Hotel is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Hotel-Motel-Restaurant Employees and Bar- tenders Union, Local 86, Hotel and Restaurant Em- ployees and Bartenders International Union, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees employed by Respondent Carl- ton in its bar and culinary operations at its Reno, Nevada, place of business, excluding all other em- ployees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material herein, the above-named labor organization has been the duly designated and exclusive representative of all employees in the afore- said appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about December 13, 1974, and at all times material thereafter, to bargain collec- tively and to recognize the Union as the exclusive bargaining representative of Respondent's employ- ees, 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 collectively and to recognize the Union, Respondent has inter- fered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the ex- ercise 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 Sec- tion 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 Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Carlton Hotel, Reno, Nevada, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and to bargain collec- tively in good faith concerning rates of pay, wages, hours of employment, and other terms and condi- tions of employment with Hotel-Motel-Restaurant Employees and Bartenders Union, Local 86, Hotel and Restaurant Employees and Bartenders Interna- tional Union, AFL-CIO, as the exclusive bargaining representative of its employees in the following ap- propriate unit: All employees employed by Respondent Carlton in its bar and culinary operations at its Reno, Nevada, place of business, excluding all other employees, guards 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 Reno, Nevada, facility copies of the attached notice marked "Appendix." I Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Re- spondent's representative, shall be posted by Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where no- tices to employees are customarily posted. Reason- able 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 date of this Order, what steps have been taken to comply herewith. 3In 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 Pursuant to Section 10(c) of the National Labor National Labor Relations Board °• CARLTON HOTEL 235 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 Ho- tel-Motel-Restaurant Employees and Bartenders Union, Local 86, Hotel and Restaurant Employ- ees and Bartenders International Union, AFL- CIO, as the exclusive representative of the em- ployees 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 represen- tative of all employees in the bargaining unit de- scribed 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 employees employed by Respondent Carl- ton in its bar and culinary operations at its Reno, Nevada, place of business , excluding all other employees , guards and supervisors as defined in the Act. CARLTON HOTEL