Viscount Hotel

288 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Holiday Gifts, Inc. d/b/a Viscount Hotel and Inter- national Union of Operating Engineers, Local No. 501, AFL-CIO. Case 31-CA-16438 June 21, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On March 4, 1988, Administrative Law Judge George Christensen issued the attached decision. The General Counsel filed exceptions and a sup- porting brief, and the Respondent filed a brief in response. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, I findings, and conclusions and to adopt the recommended Order.2 ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. 1 We grant the Respondent's unopposed motion to correct the tran- script 2 We note that the judge recommended granting the motion to dismiss and ordered the hearing closed subject to the General Counsel's meeting two conditions and the General Counsel has not asserted in her excep- tions to the Board that the conditions set forth in the Order have been met DECISION GEORGE CHRISTENSEN, Administrative Law Judge. On February 25, 1988, I conducted a hearing at Las Vegas, Nevada, to try issues raised by a complaint issued on November 27, 1987, based on a charge filed on March 31, 1987, by Local 501. The complaint alleged the Respondent violated Sec- tion 8(a)(1) and (5) of the National Labor Relations Act by refusing to bargain collectively with Local 501 as the exclusive collective-bargaining representative of an ap- propriate unit of the Respondent's employees. The Re- spondent admitted the refusal, but denied it violated the Act. The General Counsel, Local 501 , and the Respondent appeared by counsel and were afforded opportunity to adduce evidence and produce , examine, and cross-exam- ine witnesses. After introduction into evidence of the formal docu- ments, counsel for the General Counsel announced he was unable to produce evidence supporting the com- plaint allegations because his principal witness (the Re- spondent's manager) had not appeared in response to his subpoena and requested a continuance to a later date. The Respondent's counsel denied the manager was ever served with process. In response to my inquiry, counsel for the General Counsel was unable to produce any evi- dence of service of the alleged subpoena on the missing witness. Counsel for Local 501 supported the motion for a con- tinuance. Counsel for the Respondent noted he was appearing ready for trial, opposed the continuance, and moved to dismiss the complaint. Noting counsel for the General Counsel had ample op- portunity to perfect service on the missing witness, had no evidence of such service, and that all parties were present and prepared for trial, I deny the motion for a continuance, grant the motion to dismiss, and order the hearing closed, subject to reopening only on production of evidence the missing witness was properly served by subpoena prior to the hearing, accompanied by a repre- sentation counsel for the General Counsel is pursuing an action in the United States district court to compel the missing witness to appear and testify in response to that subpoena. 289 NLRB No. 47