Jessie Beck's Riverside Hotel

JESSIE BECK'S RIVERSIDE HOTEL Beck Corporation, d/b/a Jessie Beck's Riverside Hotel and Casino and Hotel-Motel-Restaurant Employees and Bartenders Union, Local 86, Hotel and Restaurant Employees and Bartenders Inter- national Union, AFL-CIO. Case 20-CA-12107 August 31, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY Upon a charge and amended charges filed on November 4, 11, and 19 and December 2, 7, and 9, 1976, respectively, by Hotel-Motel-Restaurant Em- ployees and Bartenders Union, Local 86, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, herein called the Union, and duly served on Beck Corporation, d/b/a Jessie Beck's Riverside Hotel and Casino, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 20, issued a complaint and notice of hearing on December 22, 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 July 6, 1976, following a Board election in Case 20-RC-12952, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate; I and that, commenc- ing on or about July 8, 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 January 3, 1977, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On April 7, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. On April 13, 1977, the Charging Party filed a "Brief in Support of Motion for Summary Judgment." Subsequently, on April 19, 1977, the Board issued an order transferring the proceeding to I Official notice is taken of the record in the representation proceeding. Case 20-RC-12952. 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 I TI Electrosirtems, Inc.. 166 NIRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4. 231 NLRB No. 125 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 "Opposi- tion to Motion for Summary Judgment and Motion to Consolidate Proceedings" and a brief in support thereof. 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 response to the Notice To Show Cause, Respondent, in substance, contests the Board's assertion of jurisdiction over its operations and denies the appropriateness of the bargaining unit and the validity of the Union's certification because of certain objections to the election and exceptions to rulings thereon. Counsel for the General Counsel basically argues that Respondent is attempting here to relitigate issues which were raised and determined in the underlying representation proceeding which it may not do. We agree with the General Counsel. Review of the entire record, including that in Case 20-RC-12952, discloses that on September 29, 1975, the Regional Director issued her Decision and Direction of Election in which she asserted jurisdic- tion over the Respondent contrary to its contention that the Board's assertion of jurisdiction over the gaming industry was arbitrary and capricious and in which she found appropriate a unit of all full- and part-time employees, excluding certain classifications of employees whom the Respondent would have included. The Respondent filed a timely request for review and/or motion to remand reiterating its jurisdictional and unit inclusion contentions. On October 31, 1975, the Board denied the request as raising no substantial issues warranting review. The Union won the election conducted on Novem- ber 5, 1975. Respondent filed timely objections in which it alleged, in substance, (I) its unit conten- tions; (2) that the Union falsely informed employees in the engineering department that if it won the election they would be represented by another union; (3) that employees did not receive sufficient notice of the date and times of the election because the notices of the election were not received by Respondent until October 31, 1975, a legal holiday in Nevada; (4) that 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): Follerr Corp, 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7. 1968); Sec. 9(d) of the NLRA. as amended. 907 DECISIONS OF NATIONAL LABOR RELATIONS BOARD more than 26 employees were prevented from voting by the Board's arbitrarily setting the election on a date other than that designated by Respondent; (5) that union representatives threatened and intimidat- ed employees to vote for the Union; (6) that Respondent's supervisors participated in the union organization efforts; (7) that an employee who was discharged prior to the election was allowed to vote; (8) that the Board agent conducting the election failed to void ballots where the "X" was placed in the "YES" square which contained unusual markings which could clearly identify the voters; and (9) that the Board agent conducting the election voided the ballot where the "X" was placed in the "NO" square. After investigation, the Acting Regional Director issued a supplemental decision and notice of hearing on December 23, 1975, overruling all objections except Objection 2, dealing with the misrepresenta- tion, and Objection 5, dealing with threats to employees, both of which raised substantial and material issues of fact requiring a hearing. Respondent filed with the Board a timely request for review in which, inter alia, it specifically reiterat- ed Objection 1, dealing with the unit; Objection 4, dealing with the alleged voting deprivation of 26 employees; and Objections 7 and 8, dealing with the marking of ballots. On February 10, 1976, the Board denied the request as raising no substantial issues warranting review. After hearing, the Hearing Officer issued, on May 27, 1976, his report on objections in which he recommended that Objections 2 and 5 be overruled. The Respondent filed timely exceptions and supporting brief with the Regional Director.2 On July 6, 1976, the Regional Director issued a supple- mental decision and Certification of Representative adopting, with additional reasons, the Hearing Officer's recommendations that Objections 2 and 5 be overruled and certifying the Union. Respondent then timely filed a request for review contending that its Objection 2 should have been sustained on the basis of its offers of proof or alternatively that a de novo hearing be held to receive relevant evidence. This request was telegraphically denied by the Board on September 16, 1976, as raising no substantial issues warranting review. 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 The Hearing Officer had inadvertently directed that exceptions be filed with the Board rather than with the Regional Director. After the Heanng Officer corrected the error, the Respondent timely filed its exceptions with the Regional Director, and the Board, on Respondent's motion and by Order dated June 28, 1976, revoked its Second Supplemental Decision and Except as hereinafter set forth, all issues raised by the Respondent in this proceeding 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, there- fore, find that the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. Respondent's answer to the complaint also denies (1) the Union's request to bargain and its refusal to do so, and (2) the filing and service of the charge and the amended charges. With respect to (1), attached to the Motion for Summary Judgment as Appendixes 19 and 20 are a letter dated September 22, 1976, from the Union to the Respondent requesting bargaining, and an affidavit by Howard Lawrence, administrator of the Union, to which are attached receipts for certified mail showing receipt of the letter by the Respondent on September 24, 1976, as well as receipt by the Respondent of the Union's earlier bargaining request by letter dated July 8, 1976. The affidavits attached to the Respondent's brief in opposition to the Motion for Summary Judgment, as Exhibits C and D, do not controvert the facts as to the Union's September 22, 1976, request to bargain and the Respondent's failure to respond thereto. According- ly, we deem the allegations concerning a request and refusal to bargain to be admitted and true. Thrift Drug, a Division of J. C. Penney Company, Inc., 215 NLRB 259 (1974). With respect to (2), copies of the filed charge and amended charges, affidavits of service, and post office receipts are attached as appendixes to the Motion for Summary Judgment and stand uncontroverted. Accordingly, we deem the allegations of the complaint concerning the filing and service of the charge and amended charges to be admitted and true. Finally, in its response to the Notice To Show Cause, Respondent contends that the Motion for Summary Judgment should be denied and this proceeding should be consolidated for hearing with two other consolidated cases to avoid unnecessary litigation, costs, or delay, citing Peyton Packing Company, Inc., 129 NLRB 1358 (1961), and Jefferson Chemical Company, Inc., 200 NLRB 992 (1972). We find no merit in this contention. After the Regional Director issued a consolidated complaint in Cases Certification of Representative because the proceeding was properly pending before the Regional Director and not before the Board. 3 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). 908 JESSIE BECK'S RIVERSIDE HOTEL 20-CA-12243 and 20-CA-12337 alleging violations of Section 8(a)(1) and (3) of the Act, the Respondent moved to consolidate the instant case which involves violations of Section 8(a)(5). The Regional Director denied the motion on March 14, 1977, but the next day she revoked the denial and referred it to the Board's Division of Judges. On March 18, 1977, the Administrative Law Judge denied the motion after considering it in the light of the oppositions filed by the General Counsel and Union and in the light of the General Counsel's discretion to determine mat- ters of consolidation. Although the Respondent failed to appeal this denial promptly as required by Section 102.26 of the Board's Rules and Regulations, we shall treat the Respondent's motion to consoli- date as timely filed. The authority to consolidate cases is vested in the General Counsel under Section 102.33 of the Board's Rules and Regulations. This authority and its discretionary nature has long been established. United Packinghouse Workers of Ameri- ca, CIO, et al. (Wilson & Co., Inc.), 89 NLRB 310 (1950). In view of the Administrative Law Judge's affirmance of the Regional Directors' refusal to consolidate and as the alleged 8(a)(1) and (3) violations involved conduct occurring after the election and certification herein, which are the underpinnings of the 8(a)(5) and (I) violations alleged herein, we find that there was no abuse of discretion in the refusal to consolidate and that the Peyton Packing and Jefferson Chemical precedents cited by the Respondent are distinguishable and inapposite. Accordingly, we affirm the Administra- tive Law Judge's denial of the Respondent's motion to consolidate, and deny the Respondent's motion to consolidate made herein. 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 THE RESPONDENT At all times material herein, Respondent, a Nevada corporation, has been engaged in the operation of a resort hotel, restaurant, and casino at Reno, Nevada. During the past calendar year, Respondent, in the course and conduct of its business operations, has received gross revenues in excess of $500,000 and has purchased and received goods and materials valued in excess of $10,000 from suppliers located outside the State of Nevada. 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. [I. 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 Representation Proceeding 1. The unit The following employees of the Respondent constitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time employees of the Employer's Reno, Nevada operation, includ- ing engineering department employees, the stage- hand, receiving clerk, and warehouse laborers; but excluding front desk clerks, PBX operators, reservations clerks, night auditor, booth atten- dants in the coupon redemption center, employ- ees in the casino, administration and security departments, guards and supervisors as defined in the Act. 2. The certification On November 5, 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 20 designated the Union as their representative for the purpose of collective bargain- ing with the Respondent. The Union was certified as the collective-bargaining representative of the em- ployees in said unit on July 6, 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 Rtspondent's Refusal Commencing on or about July 8, 1976, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about July 8, 1976, 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 representa- 909 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since July 8, 1976, and at all times thereafter, refused to bargain collectively with the Union as the 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 1, 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), enfdi 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. Beck Corporation, d/b/a Jessie Beck's River- side Hotel and Casino, is an employer engaged in commerce 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 Employees and Bartenders International Union, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All full-time and regular part-time employees of the Employer's Reno, Nevada, operation, includ- ing engineering department employees, the stage- hand, receiving clerk, and warehouse laborers; but excluding front desk clerks, PBX operators, reserva- tions clerks, night auditor, booth attendants in the coupon redemption center, employees in the casino, administration and security departments, guards, 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 July 6, 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 July 8, 1976, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent 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, 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 Respondent, Beck Corporation, d/b/a Jessie Beck's Riverside Hotel and Casino, Reno, Nevada, its officers, agents, successors, and assigns, shall: I. 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-Restau- rant Employees and Bartenders Union, Local 86, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: 910 JESSIE BECK'S RIVERSIDE HOTEL All full-time and regular part-time employees of the Employer's Reno, Nevada operation, includ- ing engineering department employees, the stage- hand, receiving clerk, and warehouse laborers; but excluding front desk clerks, PBX operators, reservations clerks, night auditor, booth atten- dants in the coupon redemption center, employ- ees in the casino, administration and security departments, 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." 4 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respon- dent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. 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 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 Union, Local 86, Hotel and Restaurant Employ- ees 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 full-time and regular part-time employ- ees of the Employer's Reno, Nevada opera- tion, including engineering department em- ployees, the stagehand, receiving clerk, and warehouse laborers; but excluding front desk clerks, PBX operators, reservations clerks, night auditor, booth attendants in the coupon redemption center, employees in the casino, administration and security depart- ments, guards and supervisors as defined in the Act. BECK CORPORATION, D/B/A JESSIE BECK'S RIVERSIDE HOTEL AND CASINO 911